EN Decision Nc 8 12 2011 _2_ TTG3/4 39482 3130 4
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EUROPEAN COMMISSION
Brussels, 12.10.2011
C(2011) 7273 final
COMMISSION DECISION
of 12.10.2011
addressed to:
- Chiquita Brands International, Inc.
- Chiquita Banana Company BV
- Chiquita Italia SpA
- FSL Holdings NV
- Firma Leon Van Parys NV
- Pacific Fruit Company Italy SpA
relating to a proceeding under Article 101 of the Treaty on the Functioning of the
European Union
(COMP/39482 – Exotic Fruit (Bananas))
(Only the English text is authentic)
EN
EN
Parts of this text have been edited to ensure that confidential information is not disclosed.
Those parts are replaced by a non-confidential summary in square brackets or are shown as
[…]
TABLE OF CONTENTS
1.
INTRODUCTION ........................................................................................................7
2.
THE INDUSTRY SUBJECT TO THE PROCEEDINGS............................................7
2.1.
The product ...................................................................................................................7
2.2.
The market players .......................................................................................................7
2.2.1.
Undertakings subject to these proceedings...................................................................7
2.2.1.1. Chiquita.........................................................................................................................7
2.2.1.2. Pacific .........................................................................................................................10
2.2.2.
Other market players...................................................................................................11
2.3.
Description of the Industry .........................................................................................11
2.3.1.
The supply ..................................................................................................................11
2.3.1.1. Banana brands in the Southern European region........................................................13
2.3.1.2. The two layers of the business in Southern Europe....................................................13
2.3.1.3. Pricing.........................................................................................................................16
2.3.1.4. Negotiations with customers in Italy ..........................................................................16
2.3.1.5. Negotiations with customers in Greece and Portugal.................................................18
2.3.1.6. Other factors ...............................................................................................................19
EN
2.3.2.
The regulatory framework ..........................................................................................20
2.3.3.
Flexibility of supply....................................................................................................22
2.3.4.
The demand ................................................................................................................25
2.3.5.
The geographic area covered ......................................................................................25
2.4.
Trade between Member States....................................................................................25
3.
PROCEDURE.............................................................................................................26
4.
DESCRIPTION OF THE EVENTS ...........................................................................28
4.1.
Background and overview ..........................................................................................28
4.2.
Evidence of the infringement......................................................................................29
2
EN
4.2.1.
Introduction.................................................................................................................29
4.2.2.
Evidence with regard to the overall infringement: Chiquita's statements made during
the inspections and in subsequent corporate statements.............................................30
4.2.3.
Evidence with regard to the meeting of 28 July 2004 ................................................32
4.2.4.
Evidence with regard to follow-up contacts in August 2004 .....................................37
4.2.5.
Evidence with regard to further contacts in February-April 2005..............................39
The timing of collusive contact in relation to week 15 of 2005 ...............................................43
4.3.
Assessment of other arguments of the parties ............................................................44
4.3.1.
Pacific’s general observations ....................................................................................44
4.3.2.
Alleged legitimate contacts with competitors.............................................................45
4.3.3.
Pacific’s arguments based on Chiquita statements .....................................................48
4.3.4.
Arguments relating to Mr [...]’s role, experience and character.................................50
5.
APPLICATION OF ARTICLE 101(1) OF THE TREATY.......................................53
5.1.
Non-application of the EEA Agreement.....................................................................53
5.2.
Jurisdiction..................................................................................................................53
5.3.
Council Regulation No 26 ..........................................................................................53
5.4.
Application of Article 101(1) of the Treaty................................................................54
5.4.1.
Article 101(1) of the Treaty........................................................................................54
5.4.2.
The nature of the infringement ...................................................................................54
5.4.2.1. Agreements and concerted practices...........................................................................54
Principles...................................................................................................................................54
Application in this case.............................................................................................................56
Assessment of Pacific’s arguments...........................................................................................58
5.4.2.2. Single and continuous infringement ...........................................................................60
Principles...................................................................................................................................60
Application in this case.............................................................................................................62
Assessment of Pacific’s arguments...........................................................................................63
EN
5.4.3.
Restriction of competition ..........................................................................................65
5.4.4.
Effect upon trade between Members States................................................................68
5.5.
Procedural arguments of the parties ...........................................................................69
5.5.1.
Claims relating to the Commission’s investigation ....................................................69
3
EN
5.5.2.
Access to file claims ...................................................................................................72
5.5.3.
Legal professional privilege claims ............................................................................73
5.6.
Application of Article 101(3) of the Treaty................................................................75
6.
ADDRESSEES ...........................................................................................................75
6.1.
General principles .......................................................................................................75
6.2.
Liability in this case....................................................................................................77
6.2.1.
Chiquita.......................................................................................................................77
6.2.2.
Pacific .........................................................................................................................81
6.2.3.
Conclusion ..................................................................................................................86
7.
DURATION OF THE INFRINGEMENT..................................................................86
8.
REMEDIES ................................................................................................................87
8.1.
Article 7 of Regulation (EC) No 1/2003.....................................................................87
8.2.
Article 23(2) of Regulation (EC) No 1/2003 ..............................................................88
8.3.
Calculation of the fines ...............................................................................................88
8.3.1.
Methodology for setting the amount of the fine .........................................................88
8.3.2.
The value of sales .......................................................................................................89
8.3.3.
Determination of the basic amount of the fine ...........................................................90
8.3.3.1. Gravity ........................................................................................................................90
Nature
....................................................................................................................................90
Combined market share ............................................................................................................91
Geographic scope......................................................................................................................92
Implementation .........................................................................................................................92
Conclusion on gravity...............................................................................................................92
8.3.3.2. Duration ......................................................................................................................92
EN
8.3.4.
The percentage to be applied for the additional amount.............................................92
8.3.5.
Calculation and conclusion on basic amounts ............................................................92
8.4.
Adjustments to the basic amounts of the fine .............................................................93
8.4.1.
Aggravating circumstances.........................................................................................93
8.4.2.
Mitigating circumstances............................................................................................93
8.4.3.
Conclusion on adjustments of the basic amounts .......................................................94
8.4.4.
Deterrence...................................................................................................................94
4
EN
EN
8.4.5.
Application of the 10% turnover limit........................................................................94
8.5.
Application of the Leniency Notice............................................................................94
8.6.
Conclusion: final amount of individual fines .............................................................96
5
EN
COMMISSION DECISION
of 12.10.2011
addressed to:
- Chiquita Brands International, Inc.
- Chiquita Banana Company BV
- Chiquita Italia SpA
- FSL Holdings NV
- Firma Leon Van Parys NV
- Pacific Fruit Company Italy SpA
relating to a proceeding under Article 101 of the Treaty on the Functioning of the
European Union
(COMP/39482 – Exotic Fruit (Bananas))
(Only the English text is authentic)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to 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 Treaty1,
and in particular Article 7 and Article 23(2) thereof,
Having regard to the Commission decision of 10 December 2009 to initiate proceedings in
this case,
Having given the undertakings concerned the opportunity to make known their views on the
objections raised by the Commission pursuant to Article 27(1) of Regulation (EC) No 1/2003
and Article 12 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the
conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the Treaty2,
After consulting the Advisory Committee on Restrictive Practices and Dominant Positions3,
Having regard to the final report of the hearing officer in this case4,
1
2
3
EN
OJ L 1, 4.1.2003, p.1.With effect from 1 December 2009, Articles 81 and 82 of the EC Treaty have
become Articles 101 and 102, respectively, of the Treaty on the Functioning of the European Union
("TFEU" or “Treaty”). The two sets of provisions are, in substance, identical. For the purposes of this
Decision, references to Articles 101 and 102 of the TFEU should be understood as references to
Articles 81 and 82, respectively, of the EC Treaty where appropriate. The TFEU also introduced certain
changes in terminology, such as the replacement of "Community" by "Union" and "common market" by
"internal market". Where the meaning remains unchanged, the terminology of the TFEU will be used
throughout this Decision.
OJ L 123, 27.4.2004, p. 18.
OJ.
6
EN
Whereas:
1.
INTRODUCTION
(1)
This Decision relates to a cartel in the import, marketing and sales of bananas in
Greece, Italy and Portugal.
2.
THE INDUSTRY SUBJECT TO THE PROCEEDINGS
2.1.
The product
(2)
The product subject to the proceedings is bananas (fresh fruit). Both un-ripened
(green) bananas and ripened (yellow) bananas are covered by this Decision.
(3)
Bananas are considered to be a 52-week product, traded on a week-to-week basis, the
demand for which somewhat varies seasonally (for example, higher demand in the
first half of the year and lower demand in the warm summer months).5 Bananas can
be sold branded or unbranded and can originate from domestic production within the
Union, from ACP 6 countries or from non-ACP countries. 7 Non-ACP bananas are
mostly imported to the Union from the Caribbean region, Central and South America
as well as from some African countries. They are carried in refrigerated ships to
European ports.
2.2.
The market players
2.2.1.
Undertakings subject to these proceedings
(4)
The undertakings to which this Decision is addressed are hereinafter collectively
referred to as "the parties" or "the addressees".
2.2.1.1. Chiquita
(5)
4
5
6
7
8
9
EN
The Chiquita group is an international marketer and distributor of bananas and other
fresh fruit sold under the brand Chiquita and other brand names (the best known
second brand is Consul) in over 60 countries. The company is one of the largest
banana producers in the world and the largest supplier of bananas in Europe.
Chiquita's total turnover in 2008 amounted to EUR 2 455 million8 worldwide.9
OJ.
See, for example, ID 2043, p. 5-6 (Chiquita's reply to the 1st request for information).
The African, Caribbean and Pacific group of third countries which are signatories to the Cotonou
Agreement.
See, for example, the Report from the Commission to the European Parliament and the Council on the
operation of the common organisation of the market in bananas, COM(2005) 50 final and recital (26).
Chiquita
had
sales
of
USD
3 609
million
in
2008
(http://phx.corporateir.net/phoenix.zhtml?c=119836&p=irol-newsArticle&ID=1258329&highlight=) (Dollar figures are
converted to EUR using the average exchange rate of the European Central Bank for 2008: EUR 1 =
USD 1.4708).
See http://www.chiquita.com.
7
EN
(6)
Chiquita Brands International, Inc. (CBII) is the ultimate parent company of the
group and it is publicly listed on the New York Stock Exchange. The Chiquita group
is involved in sales and marketing of bananas in Europe via several wholly owned
subsidiaries. In the Southern European region these were during the period of the
infringement (at least from 28 July 2004 until marketing week 15 of 2005) Chiquita
Italia SpA, Alpha Fruit Hellas SA and since 2006 Chiquita Portugal. CBII owns
Chiquita Banana Company BV - which is active in the sale and distribution of
bananas in Europe - via Chiquita Brands LLC, 10 an operating company which
conducts the Chiquita branded fresh and processed food business through its
subsidiaries.11
(7)
According to Chiquita, the ultimate responsibility for the banana business in the
Southern European region12 lies with [...], who is the [...].13
(8)
Chiquita submits that volumes imported follow an annual plan which is proposed by
Mr [...]. On top of that, [...] was given the responsibility to distribute differently than
established in the annual business plan between the countries along a shipping route.
If for example, the market situation in Italy was problematic, he could decide to try
to sell more in Portugal or Greece.14
(9)
As regards Italy, Chiquita Italia SpA 15 is the company via which Chiquita is
operating in the Italian business. [...] has been the [...] since 200216 and [...] has been
[...] and [...] since 2000 (see recital (12)). As [...] he was responsible for the weekly
sales to Italian customers and recommended the weekly price to be finally decided by
[...]. As [...] he had supervisory responsibility for the sales, that is to say, calling and
negotiating with customers, weekly volumes and prices in Italy and Portugal.17 [...]
reported to [...].18
(10)
As regards the Greek business, until 2006 Chiquita operated via Alpha Fruit Hellas
S.A.,19 which is currently in liquidation and, since 2006, has operated via Chiquita
Hellas Anonimi Eteria Tropikon Ke Allon Frouton (Chiquita Hellas).20 [...] was [...]
10
11
12
13
14
15
16
17
18
19
20
EN
ID 1714, p. 2 (Chiquita's reply to the 2nd request for information, annex 1) and ID 1716, p. 5, 7, 8, 10
(Chiquita's reply to the 2nd request for information).
ID 1716, p. 8 (Chiquita's reply to the 2nd request for information).
The term Southern European region as used by Chiquita in this context contains the Mediterranean
Member States (Italy, Portugal, Spain, Greece, Malta and Cyprus), see [...].
[...], ID 1732, p. 253, 254 ([...]'s interview). [...] started working for Chiquita from December 1989,
holding different positions that can be found in the table in recital (12). [...]
[...]
Chiquita Italia SpA (Compagnia Italiana Della Frutta SpA) has been a 100% subsidiary of Chiquita
Banana Company BV Until 2002, Chiquita operated in the Italian market for other products than
bananas, via Chiquita Packaged Goods Distributing Srl which was owned by Chiquita Banana
Company BV (42%), Chiquita Italia SpA (50%) and Eurobrands, SRL (8%) (non-Chiquita entity),
which later on was merged into Chiquita Italia SpA, see ID 1714 (Chiquita's reply to the 2nd request for
information, annex 1) and 1716, p. 11 and 13 (Chiquita's reply to the 2nd request for information).
ID 1732, p. 253 ([...]'s interview).
[...]
[...]
Alpha Fruit Hellas SA has been a 100% subsidiary of Evanston Holdings, Inc. 100% of the shares in
Evanston Holdings, Inc. have been held for the benefit of Chiquita Brands LLC, see 1716, p. 4-5, ID
1714 (Chiquita's reply to the 2nd request for information).
Chiquita Hellas Anonimi Eteria Tropikon Ke Allon Frouton (Chiquita Hellas) is wholly owned by
Chiquita Banana Company BV (99%) and Chiquita Italia SpA (<1%), see ID 1714 (Chiquita's reply to
8
EN
of Alpha Fruit Hellas S.A. in 2004 and has been a [...] of Chiquita Hellas Anonimi
Eteria Tropikon Ke Allon Frouton (Chiquita Hellas) since 2006. Chiquita submits
that the pricing decision for the Greek market is taken between the [...] for Greece who reports to [...] - and his colleagues in the Chiquita office in Athens.21
(11)
As regards Portugal, Chiquita has operated via Chiquita Portugal Venda E
Comercializaçao De Fruta, Unipessoal Lda (Chiquita Portugal) since 1 March 2006.22
During the period of the infringement, Chiquita operated on the Portuguese market
via its exclusive agent [...]. 23 [...] was involved in the pricing for Portugal in
collaboration with the manager of the agent, [...], and as a [...] he was ultimately
responsible for the banana business in the Portuguese market.24
(12)
The representatives of Chiquita in the meetings or contacts described in Chapter 4 as
well as key personnel reporting to them were the following:
NAME
COMPANY
POSITION
[...]25
21
22
23
24
25
26
EN
PERIOD
[...]
[...]
Chiquita Italia
[...]
[...]
Chiquita Portugal
[...]
[...]
Alpha Fruit Hellas
[...]
[...]
Chiquita Hellas
[...]
[...]
Chiquita Portugal
Venda E
Comercializaçao De
Fruta, Unipessoal Lda
[...]
[...]
[...]26
Chiquita Italia
[...]
[...]
[...]27
Chiquita Portugal
[...]
[...]
the 2nd request for information, annex 1) and ID 1716, p. 9 (Chiquita's reply to the 2nd request for
information).
[...]
ID 1726, p. 3 (Chiquita's reply to the 4th request for information).
[...], ID 2043, p. 5 (Chiquita's reply to the 1st request for information), ID 1717, p. 4 (Chiquita's reply to
3rd RFI), ID 1314 ([...]'s reply to the request for information), ID 1131 (non-confidential version at ID
2037) (Chiquita – [...] Agency Agreement). Where (as in this case) an agent works for the benefit of its
principal, the agent may in principle be treated as an auxiliary organ forming an integral part of the
principal's undertaking who must carry out his principal’s instructions and thus, like a commercial
employee, forms an economic unit within this undertaking. See Case T-66/99 Minoan Lines v
Commission, [2003] ECR p. II-5515, at paragraphs 98-151 and Commission Guidelines on Vertical
Restraints, OJ C 291, 13.10.2000, p. 1, points 12 et seq.
[...], ID 2043, p. 5, 17 (Chiquita's reply to the 1st request for information), ID 1314 ([...]'s reply to the
request for information), see also recital (48).
[...],[...], ID 1732, p. 253-254 ([...]'s interview), ID 1716, p. 9, 13 (Chiquita's reply to the 2nd request for
information), ID 1719, p. 4, 9, 13 (Chiquita's reply to 4th request for information).
[...].
9
EN
[...]28
Chiquita Hellas
[...]29
(13)
[...]
[...]
[...]
[...]
[...]
[...]
The entities of the Chiquita group involved in the banana business in Europe are
hereinafter jointly referred to as "Chiquita".
2.2.1.2. Pacific
(14)
The company Firma Leon Van Parys NV (LVP) together with its subsidiaries carries
out the import and sales of Bonita branded bananas in Europe. In Italy, Greece and
Portugal, LVP operates via its wholly owned subsidiary Pacific Fruit Italy SpA
(PFCI). LVP is owned by FSL Holdings NV (Belgium) (100 % shareholding minus
one share) and by FSL Finance BV (Netherlands; 1 share). Those two companies are
owned by TW Trading BV (Netherlands) [...], which is in turn owned by Transworld
Trading NV (Netherlands Antilles).30
(15)
LVP, PFCI and the entities belonging to the same group and involved in the banana
business in Europe are hereinafter jointly referred to as "Pacific", "Pacific Fruit",
"Bonita" or "Noboa", depending on the source of information.
(16)
The Bonita brand is owned by the Noboa Group. The Noboa Group (Corporación
Noboa in Spanish) consists of around 110 companies and is the largest conglomerate
in Ecuador. The group is involved, among other activities, in agriculture, banking,
mining and sea transport. Its banana division, Exportadora Bananera Noboa S.A., is
one of the largest banana exporters to the European market.31
(17)
The term Noboa Group or Corporation Noboa does not refer to a distinct entity or
actually registered company. These are collective terms which identify all the
companies gathered in the group. The corporate structure and ultimate parent
company of the group are not reliably identifiable from public sources 32 . Pacific
maintains that it does not have information available on the corporate structure above
Transworld Trading NV.33
27
28
29
30
31
32
33
EN
[...].
[...], ID 1716, p. 9 (Chiquita's reply to the 2nd request for information), ID 1719, p. 9 (Chiquita's reply to
4th request for information).
[...].
See recital (283). ID 1919, p 1 (Pacific's reply to the 8th request for information).
See http://bananalink.org.uk; see also ID 1759, p. 16-18, ID 1792, p. 2-3, ID 1793 (Pacific inspection
document) where it is mentioned that "Noboa (E.B.N.S.A)" which stands for Exportadora Bananera
Noboa SA exports Bonita branded bananas.
According to the judgments of 16 May 2001 and 21 November 2002 of the United Kingdom High
Court of Justice, Queens Bench Division, Commercial Court in case Maria Elena De Molestina and
others v. Alvaro Noboa Ponton and others, a company named Fruit Shippers Ltd. (FSL) was established
by the late Louis Noboa as the holding company for the businesses he controlled outside Ecuador (ID
1204, p. 1-56.). See also Forbes magazine (17 March 2003; http://www.forbes.com).
ID 1900, p. 4 (Pacific's reply to the 6th request for information), ID 1934, p. 1 (Pacific's reply to the 9th
request for information).
10
EN
(18)
[...] was the [...] of PFCI from [...] until [...]. During the period of the infringement,
[...] was [...] of LVP and [...] of PFCI.34 During the period of the infringement, Mr
[...] was PFCI's [...] for Italy, Mr [...] PFCI's [...] for, amongst other countries,
Portugal and (until May 2005) for Greece. As of June 2005, Mr [...] took over the
responsibility for Greece from Mr [...] whose assistant he had been prior to that
date.35
2.2.2.
Other market players
(19)
In addition to the addressees of this Decision, there are other undertakings which
have had significant banana sales in the Southern European region. These include
major importers of bananas such as [...] and the [...] group. Other market players are
smaller importers, independent ripeners, wholesalers and retailers of bananas.
(20)
[...] is the parent company of the [...] Group, which produces and markets fresh fruit
and fresh vegetables and markets packaged and frozen fruit. It sells and markets
bananas in the Southern European region via subsidiaries in Italy, Greece and
Portugal.36
(21)
[...] is a distributor for the [...] Group in Southern Europe. The [...] Group is a
vertically integrated producer, marketer and distributor of fresh and fresh-cut fruit
and vegetables, as well as a producer and distributor of prepared fruit and vegetables,
juices, beverages, snacks, and desserts.37 [...] is controlled by the vertically integrated
[...] which also owns large ripeners and marketers of bananas (for example, [...] in
Italy, [...] in Portugal and [...] in Greece) in the Southern European region.38
2.3.
Description of the Industry
2.3.1.
The supply
(22)
The size of the banana business in Italy, Portugal and Greece is estimated to have
been around EUR 525 million in 2004 and 2005. 39 Chiquita's market shares are
estimated to have been around 40% in 2004 and 2005 in Italy, above 20% in 2004
and around 30% in 2005 in Portugal, and around 50% in 2004 and 2005 in Greece.
Pacific's market shares are estimated to have been around 10% in 2004 and 2005 in
Italy, around 10 % in 2004 and 2005 in Portugal, and around 15-20% in 2004 and
around 10% in 2005 in Greece. In 2004 and 2005, [...] and [...] had a share of
approximately 35-40% in the Italian business, approximately 45% in the Portuguese
34
35
36
37
38
39
EN
See e.g. ID 1859, p. 1 (Pacific's reply to the 3rd request for information), ID 1841, p 4 (Pacific's reply to
the 1st request for information), ID 1073 (annex to Pacific's reply to the 6th request for information), see
also section 6.2.
See recital (289).
ID 1588, p. 2-4 ([...]'s reply to the 2nd request for information). Any reference in this Decision made to
[...] or the [...] Group refers to [...]., as well as its directly or indirectly controlled subsidiaries active in
the banana business in the Southern European region.
For
the
scope
of
[...]'s
business
activities
see
http://www.freshdelmonte.com/ourcompany/companyoverview.aspx.
ID 1498 ([...]'s reply to the 4th request for information). Any reference in this Decision made to [...] can
refer to [...]and/or the [...] Group as a whole.
ID 1704, 1705 (Chiquita's reply to the 2nd request for information), ID 1588, p. 13-15 ([...]'s reply to the
2nd request for information), ID 1910, p. 8 (Pacific's reply to the 7th request for information).
11
EN
business and approximately 30-40% in the Greek business. Third parties other than
these big four multinationals had a significant share in the business only in Portugal
(approximately 25%).40
(23)
The banana business operates in regular, time related cycles. Bananas are imported
into Europe from the tropics. Bananas are harvested green (unripe) and once cut from
the plant, they irreversibly start aging. Due to their perishable nature they are
transported in refrigerated vessels. Banana shipping to Europe from Latin American
ports takes approximately two weeks. Bananas shipped to Southern European ports
mainly arrive weekly or every two weeks, according to regular shipping schedules.
As each vessel has to return to the tropics after 6 to 7 weeks, each major banana
importer operates a shuttle service which consists of several rotating vessels. Shuttle
services to Europe serve either Northern Europe or the Mediterranean.41
(24)
There may also be trading volumes arriving in the Southern European region on
vessels without pre-established regular schedules. To import bananas to the Southern
European region the parties mainly use Southern European ports like Genova,
Salerno, Vado Ligure, Civitavecchia (Italy), Aegion (Greece), Valencia, Marin
(Spain) or Setubal (Portugal).42
(25)
Bananas are shipped and arrive green at the ports. Before they can be consumed they
need to be ripened. Ripening may be carried out by the importer or on his behalf or
organised by the buyer. Bananas are either delivered directly to buyers (green
bananas) or are ripened, and then delivered approximately a week later (yellow
bananas). The yellow price is the price for ripened bananas, whereas the green price
is the price for un-ripened bananas.43 The trading to sell each week’s deliveries must
be concluded quickly since there is no easy or cheap way of correcting significant
oversupply or mitigating any significant supply shortage.
(26)
Banana importers sell bananas to different types of customers: wholesalers, ripeners,
supermarkets and other retailers. The banana trade operates on a weekly basis.44 In
principle, bananas can be sold as branded or unbranded45 bananas.
40
41
42
43
44
45
EN
ID 1706, 1707 (annexes to Chiquita's reply to the 2nd request for information), ID 1910, p. 6-8
(Pacific's reply to the 7th request for information), ID 2029, ID 2033 (annexes to Chiquita's reply to the
1st request for information). ID 1893, p. 1, 2 (Pacific resubmitted inspection document), ID 1754, p. 2
(Mr [...]'s explanations) and ID 2013, p. 19 (Chiquita inspection documents), however, indicate that
Pacific's market share in Italy was higher (in the area of ca 15%).
See, for example, [...], ID 1732, p. 253-254 (interview with Mr [...]), ID 1919, p 2 (Pacific's reply to the
8th request for information), ID 1587, p. 4-5 ([...]'s reply to the 2nd request for information), ID 1499
([...]'s reply to the 4th request for information).
[...], ID 1732, p. 256 (interview with Mr [...]), ID 1740 (Chiquita's reply to the 3rd point 11 letter), ID
1919, p 2 (Pacific's reply to the 8th request for information), ID 1060, p. 75 (Transferred transcript 13).
See for example ID 1898, p. 5-6 (Pacific's reply to the 5th request for information), [...] and recital (34).
A marketing week is a period of time during which a weekly price is applicable (recital 111 of
Chiquita’s reply to the Statement of Objections). A marketing week therefore does not necessarily fully
coincide with a calendar week and it does not necessarily refer to the same period of time in Greece,
Portugal and Italy, respectively. Chiquita’s marketing week usually started on Monday for Italy, on
Thursday for Greece and a few days prior to the arrival of the vessel in Portugal, see recitals (43) et seq.
ID 1910, p. 10 (Pacific's reply to the 6th request for information) refers to "unbranded bananas" as
private label sales under supermarket brands.
12
EN
2.3.1.1. Banana brands in the Southern European region
(27)
As regards branded bananas, the banana business generally distinguishes three "tiers"
of banana brands: premium "Chiquita" brand bananas for which importers can
achieve the highest price, second-tier bananas ("[...]" and "[...]" branded bananas)
and third-brand bananas (so called "thirds" which includes a number of other banana
brands, in particular the "Bonita" brand or Chiquita's "Consul" brand). This branddivision is reflected in the banana pricing.
(28)
In Italy, Chiquita obtained the highest price for its bananas marketed with its
"Chiquita" brand, followed by bananas traded under "[...]" and "[...]" brands; the
thirds like Pacific's "Bonita" were at the lower end of the scale.46 During the period
of the infringement, Chiquita also obtained the highest price in Greece followed by
[...] and, as thirds, [...] and Pacific.47 For Portugal, [...] branded bananas formed the
first tier with the highest price and Chiquita the second tier, followed by [...] and
Pacific.48
(29)
The banana business uses so called "T1" and "T2" prices. T1 prices are prices for
bananas which are "duty unpaid" (in terms of customs and the licence), T2 prices are
prices for bananas that are "duty paid".49
(30)
Pacific submits that it sold only Bonita branded bananas in Italy, Portugal and
Greece during the period of the infringement.50 Chiquita states that it sold Chiquita
and Consul branded bananas in Italy, Portugal and Greece during the relevant period
and that they did not have unbranded sales.51 Therefore, it is concluded that there
were no sales by the parties under brands other than Chiquita, Consul and Bonita and
that they did not have "unbranded" sales during the relevant period in those Member
States.
2.3.1.2. The two layers of the business in Southern Europe
(31)
46
47
48
49
50
51
EN
The banana business in Italy, Greece and Portugal operated in two layers: on the
"green" level, where green selling importers sold unripened bananas to ripeners and
wholesalers who themselves took care of the ripening for the following week(s), and
on the "yellow" level, where ripeners as well as yellow selling importers and
wholesalers who themselves had taken care of the ripening during the previous
ID 1717, p. 7 (Chiquita's reply to the 3rd request for information). See also [...] or ID 1650, p. 12 (Annex
to Chiquita's submission of 13 October 2009), ID 1919, p. 5 (Pacific's reply to the 8th request for
information), similar ID 1501 ([...]'s reply to the 4th request for information). This was also confirmed
by Italian customers, ID 1638, p. 6.
ID 1717, p. 7 (Chiquita's reply to the 3rd request for information), similar ID 1501 ([...]'s reply to the 4th
request for information), ID 1919, p. 5 (Pacific's reply to the 8th request for information).
ID 1717, p. 6-7 (Chiquita's reply to the 3rd request for information), similar ID 1501 ([...]'s reply to the
4th request for information), ID 1919, p. 5-6 (Pacific's reply to the 8th request for information).
Pacific submits that a T1 sale is made on the basis of the customer's licence, T2 sales are sales on the
basis of the importer's licence (ID 1859, p. 12, Pacific's reply to 3rd request for information). See also ID
2043, p 9 (Chiquita's reply to the 1st request for information) and ID 1587, p 11-14 ([...]'s consolidated
reply to the 2nd request for information), ID 1754, p. 2 (Mr [...]'s explanations).
ID 1910, p. 9-10 (Pacific's reply to the 6th request for information).
ID 1716, p. 16 (Chiquita's supplementary reply to the 2nd request for information) and 1715 (annex
thereto).
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EN
week(s) sold ripened bananas one (or maximum two) week(s) later to wholesalers,
supermarkets or retailers.
(32)
Chiquita and Pacific sold almost exclusively green bananas in the Southern European
region during the period of the infringement [...] sold during that period only green
bananas in Greece and Portugal52, whereas in Italy around two thirds of its sales were
yellow bananas and one third was green bananas.53 In the Southern European region,
[...] and the entities of the [...] Group controlling ripening facilities sold a little less
than two thirds of their bananas yellow, the rest was sold green.54
(33)
The "yellow" banana price on the "yellow" level consisted of the "green" banana
price of the "green" level which had been set one (or sometimes two) week(s) before
plus the margin charged for the services of ripening and other cost factors. In other
parts of the Union this margin was more standardised. In the Southern European
region, however, this margin was not at all uniform and, therefore, there was less
correlation between prices for yellow and green bananas in that region".
(34)
Chiquita and Pacific explain that while the ripeners in Northern Europe are pure
service providers that do not bear substantial commercial risks of the product, the
ripeners in the Southern European region are independent distributors buying and
selling the fruit and thereby trying to get the best possible deal to maximise their
profits, resulting in less uniform costs. Moreover, ripeners could decide to keep the
fruit longer in the ripening facilities and sell the fruit at a later stage if they consider
that the market will go up the following week. According to Chiquita the market for
yellow bananas 1 or 2 weeks later would not always have been able to follow the
price movement of the green banana market.55 According to Pacific the ripening fee
agreed with the ripener was not fixed and varied normally between EUR [1-2] and
[3-4]. 56 [...] confirms this view for Italy and declares that the prices of yellow
bananas were not calculated by reference to the price of green bananas, but were set
independently on the basis of demand and supply of yellow bananas.57 [...] submits
that it is not aware of any stable relationship between green and yellow banana prices
in the Southern European region.58
(35)
This assessment is also confirmed by an internal memorandum found during the
inspections at the premises of Chiquita Italia.59 According to Chiquita, it was drawn
up by [...] for Mr [...] and relates to an analysis of the Italian banana business shortly
after the end of the licensing regime (that is to say, some time after 1 January
2006). 60 In particular, the memorandum observes that "[c]oncerning its own
52
53
54
55
56
57
58
59
60
EN
For Portugal this changed in 2006.
ID 1588, p. 10-11 ([...]'s reply to the 2nd request for information), ID 1588, p 19-21 (annexes thereto).
ID 1508, p. 3 (annex to [...]'s reply to the 4th request for information).
ID 1717, p. 8 (Chiquita's reply to the 3rd request for information). See also Pacific's reply to the SO, p.
8.
ID 1919, p. 7 (Pacific's reply to the 8th request for information), see also ID 1754, p. 2 (Mr [...]'s
explanations).
ID 1588, p. 9 ([...]'s reply to the 2nd request for information).
ID 1506 ([...]'s reply to the 4th request for information)
ID 2014, p. 5-6 (Chiquita inspection document AKe2).
It is clear from the text that it was drawn up shortly after the end of the old licensing regime (that is to
say, 31 December 2005). See also [...] and ID 1650, p. 2 (Chiquita's submission of 13 October 2009),
where Chiquita states that the memorandum was written in 2006. As to the authorship, see also the
14
EN
structure, the Italian market has the approach, at least on the level of traditional
importers, that it sees amongst Chiquita, Bonita, [...] and [...] the first two similar
and complementary between themselves and anchored to a 'traditional vision' of the
relationship with the market and, therefore, they would pursue supplying
'independent ripening' which in a way opposes to the dependent one of the other two
residual importers, that is to say [...] and [...]. The dependent ripening thus defined
already markets almost in its totality the bananas imported by the respective
importers of reference with some exceptions…, in any event, they hold approximately
40-45 % of the market."61
(36)
In Italy, Greece and Portugal, Chiquita was selling during the period of the
infringement almost exclusively green bananas to ripeners.62 Chiquita submits that it
did not control any ripening facilities in Greece or Portugal during the relevant
period. In Italy, Chiquita rented space in a ripening facility in Bologna whose
capacity of approximately 150 000 boxes/year (which is less than 2% of the total
imports) was completely sold to the open wholesale market.63
(37)
During the period 2003-2006, Pacific sold only green bananas to wholesalers and
ripeners in Greece and Portugal. As regards Italy, the vast majority of Pacific's
bananas were sold green to wholesalers and ripeners. 64 Pacific is not vertically
integrated and does not control any ripening capacity in Italy, Greece or Portugal.65
(38)
In addition to its green sales, Pacific had very limited yellow sales to supermarkets
(2-3% under the licensing regime, approximately 10% after liberalisation) in Italy.
The contractual relationship between Pacific and those customers is governed by
annual agreements covering the general terms and conditions of supply of bananas
(quality, terms of delivery, rebates). These contracts do not normally specify any
volumes or prices. The yellow price is determined weekly on Fridays on the basis of
a negotiation by telephone between Pacific Fruit Italy and the respective supermarket
and relate to the bananas to be supplied during the following week. The price agreed
on Friday takes effect the following Monday and typically remains unchanged for the
entire week. Pacific organises the ripening via independent ripeners. The customers
do not commit to a volume for the following week, but, instead, inform the ripener
on a daily basis of the volumes to be delivered the following day. Pacific bears the
risk of delivery of sufficient volumes on any given day. At the end of each week,
61
62
63
64
65
EN
written declaration signed by Mr [...] (ID 1650, p. 5 (annex to Chiquita's submission of 13 October
2009)).
[Italian Original: "Nella propria struttura il mercato italiano ha un'impostazione, almeno a livello di
importatori tradizionali, che tra Chiquita, Bonita [...] e [...] vede le prime due simili e complementari
tra loro e ancorate ad una 'visione tradizionale' del rapporto con il mercato e quindi sarebbero
deputate a fornire la 'maturazione indipendente' che in qualche maniera si contrappone a quella
dipendente dai due importatori residui e cioè [...] e [...]. La così definita maturazione dipendente ormai
commercializza quasi totalmente le banane importate dai rispettivi importatori di riferimento salvo
alcune eccezioni …, in ogni caso, detiene approssimativamente in 40-45 % del mercato."]
ID 2043, p. 2 (Chiquita's reply to the 1st request for information), ID 1732, p. 257-258 (Interview with
Mr [...] of Chiquita during the inspection). See also ID 2021, p. 43 (Chiquita inspection documents).
ID 2043, p. 11 (Chiquita's reply to the 1st request for information).
ID 1898, p. 5 and 7 (Pacific's reply to the 5th request for information), ID 1732, p. 256 (Interview with
Mr [...] of Chiquita during the inspection).
ID 1898, p. 2 (Pacific's reply to the 5th request for information).
15
EN
Pacific invoices the weekly quantities to the supermarkets. There are no contractual
arrangements between the ripener and the supermarket.66
(39)
In relation to the supply of green bananas, neither Chiquita nor Pacific have any long
term contractual arrangements or framework contracts with wholesalers and ripeners
in Italy, Greece or Portugal. According to Chiquita, it has only oral agreements
covering the supply of green bananas in the forthcoming week.67
2.3.1.3. Pricing
(40)
Chiquita's green price is set per box (of 18.8 kg net) on a "free on truck" basis.68
Chiquita submits that important elements for pricing in the Southern European region
were Chiquita's own stock information about sales in the preceding weeks and
information from its customers and their perception of the market. It further states
that the Northern European Aldi price, which was set on Thursdays, and the Chiquita
internal pricing call on Thursday mornings were important benchmarks.69
(41)
Pacific's green price is set per box (of 18.14 kg) and includes the cost of fruit and
shipping, duties, insurance, unloading of the ship, storage and loading of the trucks.
The level of the price depends on general market conditions and factors like the
weather, the price achieved in the previous weeks or market information received
from customers. In Italy and Portugal, factors such as volumes previously purchased
or the customer's distance to the port of discharge are also taken into account.
Decisive factors in Portugal are also the Spanish banana price and the availability of
bananas from the Canary Islands.70
(42)
If in this Decision reference is made 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).71
2.3.1.4. Negotiations with customers in Italy72
(43)
66
67
68
69
70
71
72
EN
Chiquita states that, in Italy, Mr [...] and Mr [...] usually set the initial price to be
offered to customers on Monday mornings, roughly between 8.30 and 9.00 a.m.
There were also weeks in which that decision was postponed to a later time in the
day. Shortly thereafter, sales employees of Chiquita Italy would call customers to
communicate the price and available quantities. Chiquita was not willing to negotiate
its initial price, in particular during the first half of the year. During the second half
of the year, Chiquita was more open to granting discounts of typically EUR 0.50/box
ID 1898, p. 5-6 (Pacific's reply to the 5th request for information).
ID 2043, p. 3 (Chiquita's reply to the 1st request for information), ID 1898, p. 7 (Pacific's reply to the 5th
request for information).
ID 2043, p. 8 (Chiquita's reply to the 1st request for information), see also ID 1314 ([...]'s reply to the
request for information) which confirms "free on truck ex quay" for Portugal prior to 2006. ID 1726, p.
4 (Chiquita's reply to the 4th request for information).
ID 2043, p. 6 (Chiquita's reply to the 1st request for information).
ID 1898, p. 10-11 (Pacific's reply to the 5th request for information).
Chiquita calls the price before individual rebates and discounts "initial price", see recitals (43) et seq.
below, for Pacific, in particular recital (45).
In principle, the addressee's submissions were confirmed by the Italian customers, ID 1638, p. 1-6
(summary of the replies to the request for information to Italian customers).
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EN
in particular for higher volumes. In Italy the vessel would usually arrive on
Monday. 73 On Tuesdays and Wednesdays, the communications with customers
continued before a final agreement was reached. In most weeks Chiquita did not
change its initial price once it had been set and communicated to customers. If, in
exceptional weeks, Chiquita amended its initial price, this did not take place before
Wednesday. A reason for changes in the price was weak demand. Between Thursday
and Saturday, Chiquita contacted the customers' haulage companies to pick up and
transport the ordered quantities to the respective customer. Invoices were sent to
customers between 3 to 7 days after delivery. Exceptionally, Chiquita would agree to
modify the actual selling price when a customer was willing to take additional
volumes.74
(44)
In Italy, Pacific states that it negotiated sales and would sell green bananas
throughout the week. 60 to 80% of sales took place from Monday at around 10 a.m.
to Wednesday, the rest was sold between Thursday and Saturday. Pacific sold
bananas from its stock in the port of Salerno. Sales were negotiated and executed six
days per week and Mr [...] was "more often" indicating a price as a starting point for
negotiations with customers. According to Pacific, the pricing decision was taken by
Mr [...] on the spot. The price charged by Pacific typically varied by around EUR 11.50 in the same week depending on the specific situation of the customer. Sales are
made on a spot basis and generally each telephone conversation constitutes a
separate negotiation with the customer.75 However, contrary to Pacific's submissions
evidence on the file shows that [...] was also involved in the decisions on pricing or
volumes.76
(45)
Pacific submits that it did not set any price that was used as a starting point for
negotiations with customers for Italy, Portugal or Greece.77 This is, however, clearly
contradicted by the explanations given by the responsible sales person, Mr [...],
during the inspections at PFCI who stated that "[t]he price is determined weekly: on
Monday the 'green' and on the Thursday of the week before for the 'yellow' … The
same timing is applied by … Chiquita, [...] and [...]. The estimated price (which can
be modified during the week in relation to the demand) is immediately communicated
by Dr [...] to LVP in Antwerp (in the person of [...]), similarly to the estimated
volumes to be sold. Such a price represents an average of the price of 'green' and of
73
74
75
76
77
EN
ID 1732, p. 257 (interview with Mr [...]).
ID 2043, p. 3-4, 6, 8 (Chiquita's reply to the 1st request for information) See also ID 1650, p. 12 (Annex
to Chiquita's submission of 13 October 2009): in that written statement signed by Mr [...] he moreover
states that the final setting of the Chiquita price could take place "in the course of the later morning".
ID 1859, p. 12 (Pacific's reply to the 3rd request for information), ID 1898, p. 8-10 (Pacific's reply to the
5th request for information).
For example see 1981, p. 4, 7, 31-32, 34, 39, 47, 51 (GdF documents). ID 1731, p. 118 (annex to
Chiquita's Oral Statement 1) and the e-mail of 11 April 2005, section 4.2.5 below. A series of Pacific
inspection documents also evidence Mr [...]'s involvement in the decision making on prices and
volumes and reporting to and from PFCI's parent companies (for example, ID 1761, p. 16-18, 46, 68,
84, 106 and 143; ID 1765, p. 5; ID 1766, p.2; ID 1770, p. 11; ID 1773, p. 9-13 and ID 1774, p. 3).
Moreover, as "amministratore delegato" Mr [...] had wide powers including the right to represent the
company externally, conclude contracts and hire or fire employees, ID 1919, p. 7 (Pacific's reply to the
8th request for information), see also ID 1920, p. 8-10 (extract of the Italian Company Register).
ID 1849, p. 8, and ID 1859, p. 11 (Pacific's replies to the 2nd and 3rd request for information).
17
EN
'yellow'." 78 Moreover, Pacific submits that it collected "estimates of its average
transaction prices for the following week" for the Southern European region on
Mondays.79
2.3.1.5. Negotiations with customers in Greece and Portugal80
(46)
For Greece, Chiquita's initial pricing decision was made by its Greek country
manager on Thursday afternoon after the Chiquita internal European wide pricing
call on Thursday morning. The initial price was communicated to customers on
Thursday afternoon or Friday morning. Negotiations with the customers continued
until Friday 4 p.m. Between 4 p.m. and 5.30 p.m. on Friday, Chiquita had to pass on
the information about the quantity to be discharged to its port agent. Chiquita Greece
tried to pre-sell all of its volume. The vessel normally arrived in Greece on Monday.
Subsequently, the customers picked up the agreed quantities at the port. This actual
selling price agreed was never modified. If Chiquita had excess fruit, which
according to them happened infrequently during the summer months, it occasionally
offered a revised price if a customer was willing to take additional volumes.81
(47)
Pacific submits that Chiquita threatened customers in Greece with retaliation (such as
refusals to supply) if the customer would start buying from Pacific.82
(48)
For Portugal, Chiquita submits that from approximately 2002 Chiquita's vessel
arrivals in Portugal reached a certain, on average bi-weekly, frequency which
subsequently further increased. Chiquita's vessels usually arrived in Portugal either
late in the week (Fridays to Sundays) or early the following week (Mondays). On
average 2-3 days in advance of the vessel's arrival, Mr [...] liaised with the agent,
[...]. Contacts were initiated either by Mr [...] or Mr [...] of [...] depending who
wanted to sell bananas in Portugal. Mr [...] provided Chiquita with information about
the Portuguese market and gave his recommendations to Mr [...] who discussed and
determined with the agent the price and the intended quantities to be discharged in
Portugal at least 2 - 3 days prior to the arrival of the ship. The price and the volumes
offered were subsequently "tested" in the market. Chiquita's ideas were simply
accepted by the market or, on other occasions, Mr [...] came back with negative
feedback from the customers either on the price or on the volume. Chiquita then
decided whether or not to reduce the price to comply with the customers' demand. In
approximately half of the weeks the original price remained unchanged. In the vast
majority of the cases, the final price was decided 1 to 2 days prior to the vessel's
arrival. There were also instances when Chiquita disagreed with the original price
78
79
80
81
82
EN
ID 1754, p. 2 (Mr [...]'s explanations), [Italian original: "Il prezzo è determinato settimanalmente: il
lunedì il 'verde' e il giovedì precedente per il 'giallo' … La stessa cadenza temporale è addottata [da]
… Chiquita, [...] e [...]. Il prezzo stimato (che può subire ritocchi nel corso della settimana in relazione
alla domanda) viene comunicato immediatamente dal dott. [...] alla LVP ad Anversa (nella persona di
[...]), analogamente ai volumi stimati per la vendita. Tale prezzo costituisce una media del prezzo del
'verde' e del 'giallo'."].
ID 1934, p.5 (Pacific's reply to the 9th request for information).
In principle, the addressee's submissions were confirmed by the Greek and Portuguese customers, ID
1636, p. 1-5, and ID 1639, p. 1-6 (summaries of the replies to the request for information to Greek and
Portuguese customers).
ID 2043, p. 4, 6, 8 (Chiquita's reply to the 1st request for information).
ID 1859, p. 12 (Pacific's reply to the 3rd request for information), ID 1919, p. 6 (Pacific's reply to the 8th
request for information).
18
EN
proposals made by Mr [...] or was not satisfied with the reaction from the market. A
few weeks per year, when the conditions were not attractive for Chiquita, it decided
not to discharge in Portugal at all. According to Chiquita, the actual selling price,
once agreed, was never modified.83
(49)
In Portugal and Greece, Pacific only sells bananas when it has a vessel calling at the
ports of Marin in Spain or Aegion in Greece, which usually happens every 15 days.
The sales are made on a spot basis. Prices are agreed with the customers in those
Member States over the telephone. Negotiations start approximately 10 days prior to
the expected arrival of the vessel and deals are finalised by the time the vessel docks
at the port. Pacific also submits that those discussions are "lengthy" and that Pacific
does not have any price that is used as a starting point for negotiations with
customers in those Member States as customers would first be asked to indicate the
price level in the market. Only after having agreed on a price would the customer
communicate their volume requirements.84
(50)
In relation to Portugal, Pacific submits that until 2005 it jointly negotiated with two
customers acting on behalf of a whole group of wholesalers/ripeners. In 2005 [...].
From 2006 Pacific [...]. During the whole period, Pacific also [...].85
2.3.1.6. Other factors
(51)
83
84
85
86
87
88
EN
In addition to the regulatory framework (see section 2.3.2), there was a degree of
volume and price transparency 86 which included not only the importers but also
intermediary service providers such as independent ripeners and wholesalers (also
referred to as Radio Banana). The regular contacts between the importers, port agents
and down-stream operators facilitated the flow of information.87 Transparency was
also enhanced by several sources of market intelligence, such as the well known
private source Sopisco News. An issue of Sopisco News usually contained inter alia
Italian, Spanish and Portuguese average prices of the current week (ex-post, in
categories) and exact data on boxes exported from Latin American countries. 88
Pacific submits that statistical information about volumes loaded and the prices at
ID 2043, p. 6, 8 (Chiquita's reply to the 1st request for information), ID 1717, p. 4 (Chiquita's reply to
the 3rd request for information). See also ID 1314 ([...]'s reply to the request for information).
ID 1859, p. 11-12 (Pacific's reply to the 3rd request for information), ID 1898, p. 8 (Pacific's reply to the
5th request for information).
ID 1859, p. 11-12 (Pacific's reply to the 3rd request for information), ID 1898, p. 8-9 (Pacific's reply to
the 5th request for information). Pacific's reply to the Statement of Objections, p. 20.
Chiquita mentions as such sources, amongst others, Sopisco News, Japdeva (for weekly Costa Rican
volumes), Corbana (Costa Rican volumes), Augura (Colombian weekly volumes), Asbama, Estadistica
(Ecuadorian volumes) and CIRAD, for details see ID 1060, p. 51-56 (Transferred Transcript 13). See
also ID 1663, p. 1. Shipment data was, for example, also available from the ports of Lisbon and Setubal,
ID 1662, p. 52-55 ([...]'s presentation of 15 January 2008). Chiquita, for example, kept statistics of the
arrivals of its competitors (ID 1947, p. 10-13, annex to transferred transcript 1). For the volume and
price data circulated within Pacific, see, for example, ID 1758, 1813, 1817, 1818, 1819, 1825 (Pacific
inspection documents).
As an example, an Italian port operator [...] circulated among different market participants (including,
for example, Chiquita and Pacific) monthly reports on "competitive banana v[es]s[e]ls" containing data
on arrivals of various importers' vessels and volumes in Southern Europe, thereby artificially increasing
the transparency of the market (see ID 744).
For examples of Sopisco News see ID 1947, p. 89-120.
19
EN
source are published by various public/industry organisations or port authorities in
Latin America89.
(52)
In Northern Europe, the main importers set their banana quotation prices on
Thursday mornings. 90 The Northern European quotation price does not, however,
apply to the Southern European region.91 This Decision does not relate to the kind of
quotation prices used by certain importers in the Northern European region.
2.3.2.
The regulatory framework
(53)
During the time period concerned by this Decision, the import of bananas into the
Union was regulated by Council Regulation (EEC) No 404/93 of 13 February 1993
on the common organisation of the market in bananas92. From 1 July 1993 until 31
December 2005, the regime was 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. Since 1 January 2006, the banana
import arrangement has been based on a tariff-only system.93
(54)
Up to the end of 2005, three tariff quotas 94 applied 95 . Under the so-called "A/B
quota" ACP-bananas were duty free, while under that quota non-ACP bananas were
subject to a tariff of EUR 75/tonne. A so-called "C-quota" was reserved for ACP
bananas. In total the quotas made it possible to import 3 403 000 tonnes. 96 Both
Chiquita and Pacific were registered as traditional operators A/B and were allocated
A/B licences. Moreover, Chiquita was registered as traditional operator C and was
allocated C licences.97
(55)
Banana imports outside the quotas were subject to a customs duty of EUR 680/tonne
and ACP bananas benefited from a tariff preference of EUR 300/tonne.
89
90
91
92
93
94
95
96
97
EN
Pacific's reply to the Statement of Objections, p. 25.
On "quotation prices" and the "Northern European region" see the Commission's decision of 15 October
2008 in Case 39188 – Bananas, quoted at footnote 142.
[...], see also ID 1849, p. 8, and ID 1859, p. 11 (Pacific's replies to the 2nd and 3rd request for
information) where Pacific declares that it did not set any initial reference price when it states that, for
the period 2000-2005, it did not set any price that was used as a starting point for negotiations with
customers for Italy, Portugal or Greece.
OJ L 47, 25.2.1993, p. 1. Repealed by Council Regulation (EC) No 1234/2007 establishing a common
organisation of agricultural markets and on specific provisions for certain agricultural products (Single
CMO Regulation), OJ L 299, 16.11.2007, p. 1.
See Council Regulation (EC) No 1964/2005 of 29 November 2005 on the tariff rates for bananas, OJ L
316, 2.12.2005, p. 1.
For details see the Report from the Commission to the European Parliament and the Council on the
operation of the common organisation of the market in bananas, COM(2005) 50 final, p. 5 et seq.
Under Regulation (EC) No 1964/2005 the system was changed to a tariff-only system from 1 January
2006. The tariff rate is EUR 176/tonne, however an autonomous tariff quota of 775 000 tonnes net
weight subject to zero-duty is opened for imports of bananas originating in ACP countries.
Special rules applied to accession countries: see Regulations (EC) No 838/2004 (OJ L 127, 29.4.2004,
p. 52) and (EC) No 1892/2004 (OJ L 328, 30.10.2004, p. 50).
ID 1717, p. 6 (Chiquita's reply to the 3rd request for information), ID 1919, p. 4 (Pacific's reply to the 8th
request for information). In that reply, Pacific submitted that it had been registered as a traditional
operator C with C licences, but then (ID 1351, 1352) Pacific "clarified" that this was not the case.
20
EN
(56)
The large majority of the licensed quantities went to "traditional operators".98 The
reference quantity for each traditional operator was established on the basis of the
average of its primary imports in previous years.99
(57)
When submitting licence applications, operators had to lodge a security.100 Licences
were normally issued for allocated quantities on a quarterly basis and usually had to
be used up during the term of validity, which is a respective calendar quarter.101
Unused quantities covered by a given licence were allocated to the same operator
upon application for use in a subsequent quarter within the same year. However, the
securities were forfeited in proportion to quantities not used up during the term of
validity of the initial licence. The security against a commitment to import on terms
of the licence amounted to EUR 150/tonne. 102 Bananas imported under licences
could be freely distributed throughout all the Union.103
(58)
In addition to their own licences, banana importers in effect purchased licences of
other operators. Licence holders were entitled to transfer their licences pursuant to
the applicable legal rules. In practice, importers largely used licences of other licence
holders without a formal transfer of such licences.104
(59)
In addition to Latin American and ACP bananas, there were certain quantities of
Union-produced bananas for sale. In practice, the annual amount of Union-produced
bananas was capped by the aid scheme which was in place to support Union
production, mainly in French overseas departments and the Canary Islands. There
was some domestic banana production in Greece and Portugal.105
98
99
100
101
102
103
104
105
EN
The implementing Commission Regulation sets out provisions concerning so-called "non-traditional
operators" (see Articles 6 et seq. of Regulation (EC) No 896/2001 of 7 May 2001 laying down detailed
rules for applying Council Regulation (EEC) No 404/93 as regards arrangements for importing bananas
into the Community, OJ L 126, 8.5.2001, p. 6). See also Case C-37-38/02 Di Lenardo Adriano Srl et al.
[2004] ECR I-6911, paragraphs 83-87. Under certain conditions an importer could operate both as a
traditional and non-traditional operator.
Until 1 July 2001 traditional operators received a single reference quantity for each year for imports of
bananas from certain Latin American countries and/or ACP countries, based on the quantities of
bananas actually imported during a reference period. For 1999 the reference period was made up of the
years 1994, 1995 and 1996. Thereafter, a single reference quantity for each operator was set for each
year on the basis of the quantities actually imported in the respective reference period. (See Articles 3 et
seq. of Regulation (EC) No 2362/98). As of 1 July 2001, traditional operators received a single
reference quantity for each year for imports of bananas from third countries or from ACP countries,
respectively, based on the average of primary imports during the years 1994, 1995 and 1996 (as taken
into account in 1998 for the purposes of administering the tariff quota) multiplied by an adjustment
coefficient. (For details, see Articles 3 et seq. and Articles 28 et seq. of Regulation (EC) No 896/2001,
as amended, in particular by Regulation (EC) No 1439/2003). See also Case T-139/01 Comafrica SpA
et al v. Commission [2002] ECR II-799, paragraphs 145 et seq.
That is to say, a certain amount in EUR (ECU) per tonne of bananas, for details see Articles 8, 19 and
24 of Regulation (EC) No 896/2001.
For details see Articles 14 et seq. of Regulation (EC) No 896/2001.
See Article 8(1) of Commission Regulation (EC) No 896/2001.
See Article 17 of Regulation 404/93.
Article 20 of Regulation (EC) No 896/2001. See for example [...], ID 1060, p. 79, 85-86, 104-107, 110115 (Transferred transcripts 15, 16, 17, 18), ID 1919, p. 4-5 (Pacific's reply to the 8th request for
information), ID 1638, p. 7 (summary of Italian customer replies), ID 2021, p. 33 (Chiquita inspection
documents).
The Union's compensatory aid scheme applied to the production of bananas on Madeira and in the
Azores, the Algarve, Crete and Lakonia; Portugal and Greece accounted for 3,4% of the Union
21
EN
2.3.3.
Flexibility of supply
(60)
As a result of the Community's banana import regime there was a certain increased
transparency as regards allocated licences for the import of bananas into the
Community. However, in spite of the legal regulation there were several factors
which show that certain flexibility on the market existed with respect to volumes to
be imported to the various Member States.
(61)
Firstly, licences were issued for the whole Community and were not limited to a
particular Member State or particular brand. Licences could be used at any entry
point in the Community. 106 Therefore, the total volume imported into any given
Member State in any given year was neither predetermined by the allocation of
licences to certain market participants active in that country, nor by the place of
import into the Community.
(62)
Secondly, in addition to their own and purchased licences, banana importers “leased”
licences of other operators by using licenses of other license holders without a formal
transfer of such licenses.107 Chiquita, and to a limited extent also Pacific, purchased
licence entitlements from other operators108.
(63)
Even though the trading of licences did not increase the overall volume of bananas
imported into the Union, it enabled the market operators to increase their volume of
bananas sold on the market in any Member State, optimise the cost structure,
maintain the security of supplies and react to the fluctuations on the demand side of
the market.
(64)
Thirdly, the importers were able (within certain limits) to speed up, slow down or to
divert vessels transporting bananas 109 with a view to influence supply to certain
regions within the Community. In an internal e-mail string of Pacific of 2 April 2004,
Mr [...] stated that "several ships believed to be going North have been diverted to
the Med[iterranean] region… The reason is due to the price differential between the
2 markets…". The previous e-mail in that e-mail string from Mr [...] of Pacific to Mr
[...] states that "[t]he volume planned for the North is and will move south…"110
Pacific submits that while small changes in the schedule are possible, it has diverted
or redirected a vessel on rare occasions. This mostly occurs when the original port of
106
107
108
109
110
EN
production of bananas in 2003 (96,6% being produced in Spain and France. For details see the Report
from the Commission to the European Parliament and the Council on the operation of the common
organisation of the market in bananas, COM(2005) 50 final, p. 3-4, 11.
See e.g. ID 1900, p. 5 (Pacific's reply to the 6th request for information), where Pacific states that the
country where it discharges bananas is not necessarily the country where it had imported the bananas
and cleared the customs duties.
See also recital (58). The traders use other arrangements without jeopardising their entitlements in the
long run (they may sell/"lease" the right to use the license to a third party whereby the latter is allowed
to sell bananas on behalf of the licence holder).
See ID 1060, p. 78-79, ID 1919 (Pacific's reply to the 8th request for information), p. 4-5 and Pacific's
reply to the SO, p. 11.
ID 1919, p. 3 (Pacific's reply to the 8th request for information). [...]. In an internal e-mail of Pacific of 3
January 2001 from Mr [...] to, amongst others, Mr [...], it is stated that Pacific was trying hard to "[turn]
our ships around quickly and finishing charter vessels as soon as possible", ID 1893, p. 11 (Pacific
document AJC 2).
ID 1766, p 2-3 (PFCI inspection document SDS9).
22
EN
call is congested on the expected date of arrival.111 Chiquita admitted that its vessels
occasionally deviated from the port schedule and one of the reasons for such
deviation might be the existence of a different market demand in the Mediterranean
region112. [...] and Pacific submit that it was possible to use both the service bound
for Northern Europe and the Southern European service to supply Portugal with
bananas.113
(65)
Also the replies to the Commission's requests for information addressed to ports and
port authorities in Belgium, Germany, Greece, Italy, the Netherlands, Poland, Spain
and Sweden show that vessels carrying bananas could be redirected and volumes
shifted from one Union port to another. It was possible to leave out a port on a
scheduled journey and to redirect a ship.114 Moreover, it is sufficient to inform the
ports of calling about the arrival at short notice (that was sometimes only 24 hours in
advance) or to decide upon the volumes to be unloaded at short notice.115 The Italian
port agent [...] confirmed that diversions of ships happened several times and
mentioned in this respect Chiquita and Pacific.116
(66)
While Chiquita states that its vessels usually follow a very tight port schedule of
"core vessels" that, theoretically, does not leave any room for flexibility, it also states
that it sometimes hired an "on-spot service", which adds to the flexibility in the
volumes to be imported.117
(67)
There are also indications to suggest that vessels departing from the country of origin
could be informed of the ports of destination only when they were well into their
journey across the Atlantic, allowing the companies further flexibility in channelling
their supplies to specific Member States. 118 A certain degree of flexibility is also
confirmed by the fact that bananas were transported to some neighbouring third
countries through Italy or Greece.119 Pacific confirmed that the importers could sell
their bananas inside the Union on the basis of T1 documentation to customers who
could use their own licences to import bananas into the Union market. According to
111
112
113
114
115
116
117
118
119
EN
ID 1919, p. 3 (Pacific's reply to the 8th request for information), Pacific's reply to the Statement of
Objections, p. 12.
[...].
ID 1587, p. 6 ([...]'s reply to the 2nd request for information), Pacific's reply to the Statement of
Objections, p. 16.
ID 705, p. 2 ([...] reply to a request for information), See also ID 2048 ([...]'s reply to a request for
information).
ID 729, p. 2 ([...] reply to the request for information), ID 705, p. 2 ([...] reply to a request for
information), ID 747, p. 2 ([...] reply to a request for information), ID 1919, p. 3-4 (Pacific's reply to the
8th request for information). Pacific also submits that it does not have a fixed time ahead of which it
notifies the arrival of a vessel as circumstances such as the weather can influence the time of arrival
until the very last moment. Pacific submits in its reply to the Statement of Objections (p. 12-13) that the
time at which a captain is informed of his port of destination does not determine when the company
needs to have its shipping and sales plan in place. The importer needs to organise a berth at the port,
relevant storage facilities or pre-selling of volumes and consequently cannot simply change destination
at will.
See ID 729, p. 2 ([...] reply to the request for information).
[...].
See the press articles ID 1204, p 57-63. See also [...].
See, for example, ID 1900, p 6 (Pacific's reply to the 6th request for information) and ID 1732, p. 55-68,
p. 133-161 (Chiquita's marketing presentations concerning re-exports).
23
EN
Pacific this solution does not allow the supplier to control where bananas are sold or
even if they are ultimately imported into the Union120.
(68)
Fourthly, the volumes loaded on vessels in South America might on occasions have
been higher than what was unloaded at the ports of destination in Europe and the
decisions on the volumes to be loaded on the vessels did not necessarily predetermine the quantities that actually arrived at the ports of destination. There are
indications that the importers, with a view to decrease volume of bananas unloaded
in Europe, might have resorted to dumping boxes of bananas into the sea before the
vessel reached the port of destination 121 . Pacific mentioned in this respect that
dumping of bananas into the sea had only limited scope and related to the damaged
bananas which could not be sold to the customers. According to Pacific it was in the
interest of importers to avoid import of damaged bananas and incurring the
tariff/VAT on those volumes as well as losing the use of those license volumes122.
This is also confirmed by handwritten notes of Mr [...] of Pacific which had been
found during the inspection of the Guardia di Finanza123.
(69)
Fifthly, there were cases relating to licence frauds involving, amongst other Member
States, Italy,124 which amounted to a considerable scale and affected the total volume
of bananas imported to the Union.125 Pacific's reliance on downward trend of fraud in
banana sector since at least 2003 cannot be attributed any significant weight.
According to a 2004 Anti-fraud Report referred to by Pacific, one should be prudent
to draw conclusions based on comparisons of data from different years, due to
belated notification of data by the Member States' authorities and having regard to
the fact that very often fraud and irregularities have already been committed some
years earlier, before they are subject to regular ex-post controls or in some cases
regulatory intervals expire leading to their occurrence126.
120
121
122
123
124
125
126
EN
See ID 1919 (Pacific's reply to the 8th request for information), p. 4-5.
See ID 1982, p. 38 (document received from Guardia di Finanza).
See Pacific's reply to the Statement of Objections, p. 13-15.
See ID 1982, p. 38 (document received from Guardia di Finanza).
An OLAF investigation into licence frauds since the late 1990s took place, see
http://ec.europa.eu/anti_fraud/press_room/pr/2002/2002_07_en.html,
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/00/836&format=HTML&aged=1&languag
e=EN&guiLanguage=en,
as well as the annual Anti-Fraud Reports from which it emerges that irregularities and fraud continued
in the banana sector in the period after 2000 but with a significant decrease in 2004:
http://ec.europa.eu/anti_fraud/reports/commission/2000/rep_comm_2000_en.pdf,
http://ec.europa.eu/anti_fraud/reports/commission/2001/rep_comm_2001_en.pdf,
http://ec.europa.eu/anti_fraud/reports/commission/2002/en.pdf,
http://ec.europa.eu/anti_fraud/reports/commission/2003/annex2_en.pdf,
http://ec.europa.eu/anti_fraud/reports/commission/2004/stat_en.pdf.
[...]. There are also references to licence frauds in inspection documents of Pacific: An e-mail to [...] of
a Pacific internal meeting on 19 March 2001 reports on licence fraud cases (ID 1989, p 34). Mr [...]'s
notes of a communication with Mr [...] of 18 January 2006 state: "Legal: [...] [i.e. [...]'s distributor [...]]
(2) à false licence case => WON" (ID 1773, p 13).
The Olaf press release quoted in footnote 124 mentions for an Italian case EUR 53 million of evaded
duties and EUR 56 million of affected goods. The Anti-Fraud Report of 2000 mentions (p. 25) for the
period 1998-middle of 2000 in relation to Belgian and Italian cases that at least 220 000 tonnes of
bananas were imported with false licences and the evaded duties were estimated at EUR 164 million.
The Anti-Fraud Report of 2001 mentions (p. 94) a volume of EUR 155 million. See also p. 44 of the
Anti-Fraud Report of 2002. For references to all of these documents, see footnote 124.
http://ec.europa.eu/anti_fraud/reports/commission/2004/stat_en.pdf, p. 27
24
EN
(70)
Contrary to what Pacific alleges127, the regulatory regime did not prevent importers
from shifting important volumes of bananas from one Member State to another.
Banana import data from Eurostat 128 shows that since the beginning of EU-25
statistics in May 2004 until the end of the licensing regime at the end of 2005 there
were important trade flows of bananas by volume between the region comprising
Italy, Greece and Portugal (i.e. the region concerned in this case) and the rest of the
EU 25 countries. This is reinforced by indications on price differentials between
different regions within the Union (see recital (64) above).
(71)
For these reasons and in spite of the licensing regime, the importers of bananas had a
wide margin of manoeuvre to decide on volumes to be imported into various
Member States, and in particular into Italy, Greece and Portugal, in any given week
during the period of the infringement.
2.3.4.
The demand
(72)
Bananas are seen in the trade as a 52-week product, which is traded on a week-toweek basis and the demand of which is slightly higher in the first half of the year and
lower in the second part of the year, notably during the summer period.
2.3.5.
The geographic area covered
(73)
The infringement which is the subject of this Decision relates to the supply of
bananas to Greece, Italy and Portugal, which are key Member States for the trade of
bananas along the Southern European shipping route and which are referred to
together as the "Southern European region".
2.4.
Trade between Member States
(74)
From the information received from the parties it is apparent that each of them was
active throughout the Southern European region during the period in 2004 and in
2005. During that period the banana trade was characterised by important trade flows
between Member States129 (see section 2.3).
(75)
In particular, Portugal, Italy and Greece lie along the Southern European shipping
route for bananas. Many banana vessels of the parties and the other big
multinationals followed a pre-set schedule which meant that decisions to discharge
certain volumes of bananas from a particular vessel in any Member State or a third
country along that route influenced the temporary availability of bananas in another
Member State. Chiquita reports that if, for example, the Italian market was slow in
127
128
129
EN
See Pacific's reply to the SO, p. 13.
See Eurostat database (EU27 Trade Since 1995 by SITC), available on http://eurostat.ec.europa.eu. The
data refers to Bananas, fresh and dried, including plantains. Volumes of dried bananas and plantains,
however, do not appear to be of significant importance.
Portuguese customers confirmed cross-border supplies from Spain, Italy and the Netherlands, ID 1639,
p.2. Greek customers confirmed cross-border supplies from Italian, Dutch and Portuguese suppliers, ID
1636, p.2. Also Italian customers confirm confirmed cross-border supplies from suppliers from France,
Germany, The Netherlands, Portugal, Slovenia and Spain, ID 1638, p. 2.
25
EN
one week, it would push for Portugal to sell more bananas or try to sell bananas out
of the Union via Greece.130
(76)
Customs clearance of the imported fruit could happen in a Member State other than
that in which the bananas were ultimately sold. For example, Pacific submits that it
discharged all bananas to be sold in Portugal in Spain where they also cleared
customs.131 [...] also confirms that it imported bananas into Italy and Portugal via
France and into Portugal via Spain.132 [...] submits that it imported bananas overland
into Greece via Italy where the bananas were discharged from the vessel and put into
free circulation in the Union. 133 Evidence on the file also shows "re-exports" of
bananas into the Balkans and that volumes not discharged in the Southern European
region would be sold in the markets on the Balkans, the Black Sea and in Northern
African countries.134 An internal e-mail of Pacific of 25 April 2005 states that "Italy
recovered in volume and price as result of less 'French' fruit being offered."135
(77)
[...] confirmed that the ports of Lisbon, Barcelona and Port Vendres (Southern
France near the Pyrenees) were sometimes skipped by a banana vessel and the
bananas that should have been discharged at those ports were transported there
overland from Vado.136
(78)
Evidence on the file also shows that there were overland imports of bananas by most
major importers from Northern Member States into the North of Italy.137
3.
PROCEDURE
(79)
On 8 April 2005, Chiquita applied for immunity from fines and, alternatively, a
reduction of the fine under the Commission Notice on immunity from fines and
reduction of fines in cartel cases, 138 (hereinafter "the Leniency Notice") in relation to
the business of distribution and marketing of imported bananas as well as pineapples
and other fresh fruit in Europe.139 That application was registered as Case 39188 –
Bananas. Chiquita was granted conditional immunity from fines on 3 May 2005 in
respect of an alleged secret cartel – as described in Chiquita's submissions of […] affecting the sale of bananas and pineapples in the EEA.140
130
131
132
133
134
135
136
137
138
139
140
EN
ID 1732, p 257 ([...]'s interview).
See recital (57). ID 1900, p. 5 (Pacific's reply to the 6th request for information).
ID 1587, p. 6 ([...]'s reply to the 2nd request for information).
ID 1500 ([...]'s reply to the 4th request for information).
ID 1732, p 253, 257 ([...]'s interview), p. 55-68, p. 133-161 (Chiquita's marketing presentations
concerning re-exports). See also ID 1900, p. 6 (Pacific's reply to the 6th request for information) where
Pacific confirms sales of Bananas unloaded in Greece also in third-countries.
ID 1893, p 9 (Pacific documents).
ID 705, p. 2 ([...] reply to a request for information).
ID 1900, p 6 (Pacific's reply to the 6th request for information), where Pacific also reports about exports
of Bananas from Italy to another Member State. See, for example, also ID 745, p. 109-112 ([...]'s
volume reports), ID 1254, p. 92; ID 1255, p. 5, 7-14, 27, 29-30, 33-34, 37-41, 466-468, 470; ID 1256, p.
134, 143, 157, 168, 219, 232, 319, 348, 366, 437-438, 447-448, 457, 469, 478-479, 488-489, 498-499,
529; ID 1257, p. 16, 38, 67, 89, 117 (Chiquita's volume data). See also ID 1789, p. 2-11 (Pacific
inspection document).
OJ C 45, 19.2.2002, p.3.
[...].
[...] For further information, see section 8.5.
26
EN
(80)
The investigation in Case 39188 – Bananas led to the adoption of the Commission's
decision of 15 October 2008141 finding that Chiquita, the Dole group and Weichert,
then under decisive influence of the Del Monte group, had infringed Article 81 of the
EC Treaty (now Article 101 of the Treaty) by engaging in a concerted practice
between themselves by which they coordinated quotation prices for bananas which
they each set weekly for Austria, Belgium, Denmark, Finland, Germany,
Luxembourg, the Netherlands and Sweden between 2000 and 2002.142
(81)
On 26 July 2007, the Commission received copies of inspection documents from the
Italian authorities which originated from inspections in the home and office of an
employee of Pacific Fruit Italy in the framework of national investigations. The
documents were provided to the Commission by the Guardia di Finanza who in
advance had obtained the permission of the Procuratore della Repubblica of Rome to
use the data and notes for administrative purposes. Moreover, the Procuratore della
Repubblica of Rome declared that the communication of those documents by the
Commission to the parties was not prejudicial to the national investigation in Italy,
which did not concern an infringement of competition law.143
(82)
On 26 November 2007, Chiquita was informed orally by the Directorate-General for
Competition (hereinafter "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 [...] to be present for an
interview that day. On this occasion, Chiquita was reminded that it had received
conditional immunity from fines for the whole Community. Chiquita was also
reminded of its duty to cooperate under the Leniency Notice and informed that an
investigation into the South of Europe would be carried out under case number
39482 – Exotic fruit.
(83)
On 28 to 30 November 2007, surprise inspections pursuant to Article 20(4) of
Regulation (EC) No 1/2003 were carried out at subsidiaries of [...], [...] and Pacific
Fruit Company Italy in Rome. Commission officials also inspected Chiquita Italia
SpA pursuant to Article 20(2) of Regulation (EC) No 1/2003 and carried out an
interview with Mr [...] of Chiquita.
(84)
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. Moreover, the parties were asked to re-submit
certain information and evidence originating from them which were contained in the
investigation file in case 39188 – Bananas.144 Chiquita was asked to identify the parts
141
142
143
144
EN
OJ C 189, 12.8.2009, p.12.
See, also for the exact duration of the infringement established, the Commission's press release
IP/08/1509 of 15 October 2008 and OJ C 189, 12.8.2009, p. 7. The text of the full public version of the
decision can be found on DG Competition's website.
ID 1949-1985, 1987-1991, 2071, 2073, 2074. For details on the origin of the documents obtained from
the Italian authorities see ID 2073.
Pacific provided copies of most documents requested while objecting to DG Competition's request as a
violation of Article 28 of Regulation (EC) No 1/2003. DG Competition has responded to Pacific's
objections in its letter of 6 November 2008, ID 942.
27
EN
of the transcripts of its Oral Statements in case 39188 – Bananas which it deemed to
be related to this investigation.145
(85)
On 9 February 2009, DG Competition issued a state-of-play letter to Chiquita [...].
(86)
When asked to state its confidentiality claims during the preparation of access to the
Commission's file, Pacific put forward (i) that the Commission had unlawfully
obtained the documents which it had received from the Guardia di Finanza and (ii)
that it regarded certain information contained in the documents which the
Commission had received from the Guardia di Finanza to be covered by Legal
Professional Privilege (LPP).146 Both claims have been rejected as unfounded.147
(87)
On 10 December 2009 the Commission initiated proceedings and adopted a
Statement of Objections. The Statement of Objections was sent on 11 December
2009 and was notified to the addressees between 14 December 2009 and 12 January
2010.
(88)
Following the access to the file, all addressees of this decision made known to the
Commission in writing their views on the objections raised against them and took
part in the Oral Hearing held on 18 June 2010. After the Hearing, both parties
submitted further observations to the Commission.
(89)
On 9 September 2010, requests for information were sent to the addressees of this
Decision asking them to provide information about their overall turnover and sales of
bananas as well as details about any forthcoming significant change to their
corporate structure.
4.
DESCRIPTION OF THE EVENTS
4.1.
Background and overview
(90)
In the banana business contacts between market participants occur almost
exclusively orally148 and therefore written traces of such communications are rare. In
this case, the Commission’s file contains, nevertheless, documentary evidence of
competitor contacts in relation to the Southern European banana business – a number
of which are of a collusive character.
(91)
[...] in a report drawn up by Mr [...] of Pacific entitled "Senior Call Report" relating
to a meeting in Paris on 18 September 2000 between senior management of the
Pacific group. In the report reference is made to [...] contacts in Italy between
Chiquita, Pacific and another competitor whereby those companies would be in
contact "on a weekly basis to agree on the prices to be set for the following week".149
145
146
147
148
149
EN
ID 1058, 1060, 2038.
See ID 1930 (Pacific's letter about unlawful transmission) and ID 1941, 1998 (Pacific's LPP requests).
ID 2117, 2116 and 2119 (DG Competition's replies to Pacific of 1 September 2009, 30 September 2009
and 16 October 2009).
This was confirmed by Chiquita during the Oral Hearing, see, for example, part 4 of the recording of
the Oral Hearing, from 00:12:35 to 00:12:45 and from 00:47:20 to 00:47:45. See also recitals (43)-(50).
ID 1968 (document obtained from GdF), ID 1778, p 2-3 (Pacific Inspection document). Employees of
Pacific confirmed that this meeting took place, ID 1754, p. 3, 6 (Mr Mattioni's and Mr Ferro's
28
EN
(92)
Another [...] is found in the handwritten notes by Mr [...] of Pacific relating to an
internal annual meeting of its European management and sales staff in Barcelona on
20-22 October 2003. 150 In Mr [...]'s notes of 22 October 2003 concerning a
presentation given by Mr [...] and Mr [...] of Pacific (referred to in the notes as "[...]"
and "[...]"), the following is written with regard to Greece : "[v]olume & price
coordination with Chiquita: secure market & fight when [...] or other comes in".151
(93)
[...], those documents indicate that the anti-competitive conduct between Pacific and
Chiquita in the [...] infringement period from 28 July 2004 to marketing week 15 of
2005 152 did not constitute an isolated event of price collusion in the Southern
European banana business.
(94)
In the period from at least 28 July 2004 until marketing week 15 of 2005, Chiquita
and Pacific coordinated their commercial strategy in Greece, Italy and Portugal by
coordinating their price strategy regarding future prices, price levels, price
movements and/or price trends, and exchanging information on future market
conduct regarding prices.
(95)
The cartel arrangement was set up at a meeting between Chiquita and Pacific on
28 July 2004 and following that event the parties engaged immediately in further
collusive contacts to coordinate their price strategy and to exchange information on
future market conduct. The evidence indicates that in the period from February to
early April 2005 Chiquita and Pacific engaged in such contacts on an almost weekly
basis.
4.2.
Evidence of the infringement
4.2.1.
Introduction
(96)
The main evidence of the cartel arrangement consists of the following:
150
151
152
EN
explanations). See also Pacific's explanations, ID 1841, p. 3-5 (Pacific's reply to the 1st request of
information).
ID 1910, p. 1-2 (Pacific's reply to the 6th request for information): Pacific confirms the presence of
Messrs [...]. Upon request, Pacific submitted the presentations of [...] (ID 1911, 1912 which are annexes
to 6th request for information) and states that these were the only presentations for which slides were
prepared and that Pacific has not been able to locate other documents relating to this meeting.
ID 1977, p. 13-14 (document obtained from GdF, allegato 9). According to Pacific, [...] presentation
related to bananas, ID 1910, p. 2 (Pacific's reply to the 6th request for information). See also ID 1757, p.
2, 5 and 7; ID 1759, p. 16 (Pacific inspection documents). According to Chiquita, [...] is an importer
from [...] which sold only sporadically in Greece. Chiquita submitted an e-mail with an internal
European price update report of 9 October 2003 for week 42 of 2003 which states "Greece: Arrivals
from competition at very low price 8.00 – 10.00 EURO. [...] discharging 60.000 bxs and Bonita 45.000
bxs.", ID 1717, p 8 (Chiquita's reply to the 3rd request for information), ID 1252, p. 151, resubmitted as
ID 1236 (annex to the 3rd request for information). Pacific submits that [...]was an [...] banana brand
which it believes was sold in Greece during the period of the infringement, see ID 1919, p. 7 (Pacific's
reply to the 8th request for information). See also ID 744, for example, p. 15-17 (Clerici's monthly
arrival reports for 2003) showing regular calls of [...] vessels on the Balkans, in particular at the
Bulgarian port of Bourgas near the Northern Greek border.
Chiquita's marketing week 15 for Italy started on Monday 11 April 2005. For Greece and Portugal it
had already started during calendar week 14, but in any event before Friday 8 April 2005. For further
information about the term marketing week see footnote 44.
29
EN
documents obtained during inspections by the Italian Guardia di Finanza in the
framework of a national investigation which were subsequently submitted to
the Commission with due authorisation from the Procuratore della Repubblica
of Rome;
–
documents obtained during the Commission's inspections of 28-30 November
2007 and statements made in the course of those inspections;
–
corporate statements made by the immunity applicant Chiquita;
–
replies to requests for information as well as subsequent submissions by
Chiquita.
4.2.2.
Evidence with regard to the overall infringement: Chiquita's statements made during
the inspections and in subsequent corporate statements
(97)
Throughout the proceedings, Chiquita has made a number of statements relating to
its Southern European banana business including several oral statements, a reply to
the Commission’s state-of-play letter and statements during the Oral Hearing. In
addition, during an interview carried out by Commission officials under Article 19 of
Regulation (EC) No 1/2003 during the Commission’s inspections Mr [...] ([...], South
Europe) gave a declaration on behalf of Chiquita as part of Chiquita's leniency
cooperation.153
(98)
Chiquita has submitted that in the period from 28 July 2004 until 8 April 2005 (the
date of its application under the Leniency Notice) it engaged in an infringement
comprising occasional illicit contacts with Pacific in relation to the exchange of price
trend data for the following week.154
(99)
Chiquita explains that in the context of a number of discussions between Mr [...] of
Chiquita and Mr [...] of Pacific (then [...] for Pacific Fruit Company Italy SpA)
which principally related to the sourcing of bananas in Ecuador, co-loading
arrangements, complaints about port services in Salerno, the dissolution of the trade
association Assoziazione Nazionale Importatori Prodotti Ortofrutticoli (“ANIPO”)
and the selling of bananas in Portugal, Italy, Greece and other countries, the
representatives of Chiquita and Pacific would also discuss and exchange views on
forthcoming market developments and price intentions, with the price intentions
being expressed in price variations.155
(100)
It is explained by Chiquita that on occasion, views of the general trends in the market
were exchanged between the parties, with some of those discussions leading to more
specific exchanges on price trends for the following week.156 Chiquita argues that
while Mr [...] of Chiquita would not give express or overt price indications to Mr [...]
of Pacific, he would state his views on the general market tendencies in terms such as
153
154
155
156
EN
–
During the interview, Chiquita was informed orally (without being shown any documents) that the
Commission was presuming contacts between Chiquita and Pacific at least around 28 July 2004 and
around 11 April 2005.
Chiquita statement during the Oral Hearing on 18 June 2010; [...]
[...] ID 1732, p. 259 (Statement by Mr [...] on behalf of Chiquita, in an interview carried out by
Commission officials under Article 19 of Regulation No. 1/2003 during the inspections).
[...]
30
EN
[...]. According to Chiquita's submission, such descriptions would, however, be
easily understood by any person familiar with the banana industry as having a
specific meaning with regard to prices.157 According to Chiquita, as prices would
normally vary by a range of EUR 0.50, an indication that [...] would mean that prices
were expected to go down by EUR 0.50, an indication that [...] would mean that
prices were expected to go up by EUR 0.50 and an indication that [...] would mean
that Chiquita prices would remain unchanged.158 Indeed, Chiquita's statements show
that the price intentions were exchanged in such a way that both parties would
understand whether the prices in the following week should go up by EUR 0.50, go
down by EUR 0.50 or stay the same.
(101)
157
158
159
160
161
162
EN
According to Chiquita, the persons directly involved in the price related contacts
were Mr [...] of Chiquita and Mr [...] of Pacific. As will be shown in sections 4.2.3
and 4.2.4 those contacts also included Mr [...] of Chiquita ([...], South Europe).
Chiquita explains that after Mr [...] of Chiquita had met Mr [...] of Pacific for the first
time on 24 June 2004 at a meeting of the trade association ANIPO, a lunch meeting
was organised on 28 July 2004 between Mr [...] of Pacific and Mr [...] and Mr [...] of
Chiquita. After the meeting of 28 July 2004, Mr [...] of Chiquita and Mr [...] of
Pacific started calling each other on an irregular basis, with a total of around 15-20
calls, starting from September 2004 until approximately June 2006.159 160 Chiquita
explains that while the frequency of the calls depended on the issues to be discussed,
they were more frequent at the end of 2004 and the beginning of 2005 when the
future of the trade association ANIPO was heavily discussed amongst its members
and as Mr [...] was a newcomer on the market and was looking up to Mr [...] for his
views and indications on market trends and market related issues. It further explains
that in less than half of those 15-20 calls did a discussion on general or more specific
price trends take place, with around five calls relating to future market trends of a
more general nature and another five calls including Mr [...]'s [...] for the following
week.161 Chiquita has further reported that such contacts took place before prices in
Italy were regularly communicated to customers on Monday mornings by the
Chiquita sales force.162 According to Chiquita, the calls in which price trend data was
[...]
[...]
Indeed, the Commission has obtained outgoing mobile telephone records of Mr [...] of Pacific for the
period from February to July 2004, October to December 2004 and January to November 2005 which
indicate that Mr [...] had 15 contacts initiated by him with P. [...] of Chiquita, namely on 20/01/2005,
7/04/2005, 22/04/2005, 28/04/2005, 7/06/2005, 14/06/2005, 7/07/2005, 21/07/2005, 10/08/2005,
15/09/2005, 4/10/2005, 20/10/2005, 21/10/2005 and 28/10/2005. Moreover, the same telephone records
indicate 2 contacts initiated by Mr [...] with Chiquita Italia on 19 and 23 May 2004. The Commission
has asked for full records of Mr [...]'s telephone calls for the period from 2000 to 2005. Pacific has
claimed that it is not in possession of any fixed line records and, for mobile calls, it could only provide
records for the year 2005, so the records are fragmented and do not give a full picture. All records
concern outgoing calls (from Mr [...] of Pacific to Mr [...] or Chiquita), see ID 1890.
ID 1732, p. 259 (Statement by Mr [...] on behalf of Chiquita, in an interview carried out by Commission
officials under Article 19 of Regulation No. 1/2003 during the inspections); [...]
ID 1732, p. 259 (Statement by Mr [...] on behalf of Chiquita, in an interview carried out by Commission
officials under Article 19 of Regulation (EC) No 1/2003 during the inspections); [...]
Chiquita statement during the Oral Hearing on 18 June 2010
31
EN
exchanged between Chiquita and Pacific ended at the latest when Chiquita applied
for immunity on 8 April 2005.163
4.2.3.
Evidence with regard to the meeting of 28 July 2004
(102)
On 28 July 2004, a lunch meeting was organised at the restaurant Shangri la Corsetti
in Rome between representatives of Chiquita and Pacific.164 Pacific was represented
by Mr [...] and Chiquita by Mr [...] and Mr [...].165
(103)
The meeting served as the starting point of the collusive arrangement between
Chiquita and Pacific aimed at coordinating their price strategy regarding future
prices, price levels, price movements and/or price trends, and exchanging
information on future market conduct regarding prices. As confirmed by Chiquita,
following that meeting Mr [...] of Chiquita and Mr [...] of Pacific started calling each
other on an irregular basis (see recital (101)).166
(104)
Chiquita has explained that, according to Mr [...], the participants at that meeting
discussed the possibility for Chiquita to source bananas from "Noboa" (Pacific) in
Ecuador. Pacific has submitted that, in addition to the sourcing of bananas, issues
related to joint shipping arrangements and the management of the trade association
ANIPO were also discussed.167 The contemporaneous documentary evidence related
to the meeting, however, suggests otherwise and shows how Chiquita and Pacific
used the meeting to set up the price coordination scheme which would subsequently
operate along the lines of what Chiquita has claimed in its various submissions under
the Leniency Notice (see recitals (99)-(101)), but would also go further. [...].168
(105)
The hand-written notes, which were drafted by Mr [...] of Pacific at the time of the
meeting, read as follows:169
"Chiquita/Bonita
July 28/04
(1) Portugal
[...] (under [...])
Structure to be changed end of year
less stable of 3 T2 markets
cooperation wkly basis to hold price
Spain: 1 truck/every 2 weeks MAX
[...]/Lidle.
Lowest price of all 3 markets -> 2 to 3 €
163
164
165
166
167
168
169
EN
ID 1650, pp. 1-3, 8 (Chiquita's submission of 13 October 2009); Chiquita statement during the Oral
Hearing on 18 June 2010
ID 1982, p. 50 (document obtained from GdF, allegato 14).
Chiquita's Oral Statement 1, ID 1545, p. 5; see also ID 1731, p. 74 (Mr [...]'s expense records), ID 1771,
p. 1 (Pacific inspection document SDS 14 – Mr [...]'s agenda entry).
ID 1732, p. 259 (Statement by Mr [...] on behalf of Chiquita, in an interview carried out by Commission
officials under Article 19 of Regulation No. 1/2003 during the inspections); [...]
[...]; Pacific's reply to the Statement of Objections, p. 43
[...].
ID 1983, pp. 5-6 (document obtained from GdF, allegato 15); During the inspections at Pacific in
Rome, copies of Mr [...]'s notes of the meeting of 28 July 2004 (copied during an inspection of the
Guardia di Finanza) were found (ID 1774, p 10-11, in reverse order). During the inspections at the
premises of Pacific in Rome, Mr [...] confirmed that the handwriting was that of Mr [...], ID 1754, p. 4
(Mr [...]'s explanations).
32
EN
No premium for Chiquita brand.
(2) Greece
Greece reports to [...].[...]
in charge of all 3 markets.
shipping cooperation: Salerno to Aegion
weekly business for Bonita.
Help push Chiquita/Bonita combo.
also reduce Consul.
Chiquita's idea: all Chiquita, only
premium brand.
Chiquita's price in Greece = to Italy
They believe it should be = for
Bonita Italy & Greece
(3) Italy
Push Dole & Del Monte out
Decrease Consul 15,000/wk.
Focus on incr. tha volume in Chiquita
Give the space to Bonita
Bonita pushes prices
Regulates supply (Ecuador)
Local agreement (Italy/Portugal/Greece)
too big (H.Office) Not possible
Action Plan
1.- talk next week for Portugal: price
decision: stay, up, Down. [...]
2.- Look at Italy first
3.- Greece for later."
(106)
As is clear from Mr [...]'s hand-written notes, Chiquita and Pacific170 discussed their
businesses in Portugal, Greece and Italy and set up a three step "action plan" for their
continued cooperation. According to that action plan the two parties would, as a first
step, get in contact the following week to concert on prices in Portugal, with Mr [...]
of Chiquita and Mr [...] of Pacific concerting on their price decision on whether to
"stay" the same, go "up", or go "down". This is consistent with Chiquita's statement
that, following the meeting of 28 July 2004, Mr [...] of Chiquita and Mr [...] of
Pacific would occasionally exchange more specific price trends for the following
week discussing in such terms that both parties would understand whether the prices
should go up, go down or stay the same (see recital (100)).171 As a second step, the
action plan saw the two parties giving certain priority to their joint strategy
concerning Italy ("Look at Italy first") and finally, as a third step, the focus would be
on their joint strategy for Greece ("Greece for later").
(107)
In relation to pricing in Portugal, Mr [...]'s notes reveal that while Portugal was
considered as "less stable" than Italy and Greece, Pacific and Chiquita should engage
in cooperation on a weekly basis to "hold price". Pacific submits that the reference
170
171
EN
Pacific is referred to as "Bonita" in Mr [...]'s notes
It should be noted that when providing that statement, Chiquita had not seen those hand-written notes,
as it received access to these notes only in access to file following the Commission Statement of
Objections.
33
EN
"cooperation wkly basis to hold price" in Mr [...]’s notes refers to Chiquita
explaining that it was cooperating on a weekly basis with its agent in Portugal.
Pacific further claims that, alternatively, Mr [...] could have asked himself whether
Pacific would be better able to hold its price if it were to benefit from a weekly
arrival through a co-shipping arrangement with Chiquita, or through Pacific bananas
being sold in Portugal under the Chiquita brand.
(108)
The notes are clear with regard to the intent of Pacific and Chiquita to coordinate
prices. As the action plan suggests ("talk next week for Portugal: price decision:
Stay, up, down. [...]") the reference to "cooperation wkly basis to hold price"
indicates that the two competitors agreed to cooperate on a weekly basis on prices.
(109)
Mr [...]'s notes reveal in relation to pricing in Greece that Chiquita had indicated its
aim of bringing its price in Greece up to its price in Italy where the prices were
higher ("Chiquita's price in Greece = to Italy"), and had indicated that it thought that
the same approach should also apply for Pacific's "Bonita" branded bananas in
Greece and Italy, namely that Pacific's prices in Greece should be equal to Pacific's
prices in Italy ("[Chiquita] believe it should be = for Bonita Italy & Greece").
(110)
Pacific contests this interpretation and argues that the information in Mr [...]'s notes
on the equalling of prices in Greece and Italy is trivial and does not correspond to
Pacific's actual price situation 172 . Contrary to Pacific’s argument, the discussion
about how respective prices of Chiquita and Pacific in Greece and Italy should
interrelate is, however, not trivial but constitutes a highly sensitive discussion on two
competitors’ respective pricing strategies.
(111)
In relation to Italy, Mr [...]'s notes reveal that the parties had discussed the strategy
by which Chiquita would focus on increasing the volume of its premium brand
"Chiquita" banana in Italy, while decreasing the volume of its second brand "Consul"
and discussed the possibility for the freed-up space to be given to Pacific's "Bonita"
brand instead. According to Mr [...]'s notes, Pacific would then push the market
prices up ("Decrease Consul 15,000/wk. […] Focus on incr[easing] th[e] volume in
Chiquita […] Give the space to Bonita […] Bonita pushes prices").
(112)
Pacific argues, with regard to the alleged interpretation of notes on Italy in the
Statement of Objections and in particular with regard to the statement in the
document: “Push Dole & Del Monte out”, that it is not credible that Pacific and
Chiquita would have agreed to push Dole ands Del Monte out of the Italian market
by increasing the volume of Chiquita branded bananas while decreasing Consul and
by Pacific pushing up prices.173 Contrary to Pacific’s claim, however, the Statement
of Objections did not link the quoted statement to the discussions about volumes and
prices of the parties in the way argued by Pacific, but, in that respect, simply
repeated the content of the notes.
(113)
Pacific refers furthermore to Mr [...]’s claim that the meeting of 28 July 2004 took
place over lunch, thus making it unlikely that any anti-competitive behaviour would
172
173
EN
Recital 206 of Pacific’s reply to the Statement of Objections.
Recital 5 and section 5.2.4 of Pacific’s reply to the Statement of Objections referring to recital 95 of the
Statement of Objections.
34
EN
have taken place at the meeting. 174 In this respect it suffices to refer to
contemporaneous notes drawn up by Mr [...] on the content of this meeting.
(114)
In view of Pacific's arguments175 questioning the reliability of Mr [...]'s hand-written
notes relating to the meeting of 28 July 2004, a number of factual elements can be
highlighted to show that Mr [...]'s notes are well anchored in reality and, in fact,
constitute a credible piece of evidence that reproduces accurately the market
conditions and Chiquita's and Pacific's intentions and strategic thoughts at the time of
the meeting. This holds irrespective of whether certain elements of notes may have
been known in the market, as Pacific claims176.
(115)
To this effect, a number of the factual statements regarding the parties' banana
business that are contained in Mr [...]'s notes can be verified.
(116)
With regard to Mr [...]'s notes concerning Portugal, and apart from the accurate
description of Chiquita's plans for its business structure177, they correctly refer to
Portugal as being "less stable" and having the "lowest prices" compared to Greece
and Italy and Chiquita branded bananas not benefiting from a "premium" status. In
fact, Chiquita confirms that it regarded Portugal as an opportunistic market with the
lowest prices where Chiquita branded bananas were only perceived as "second tier"
(see recitals (27)-(28)).178 Chiquita also submits that at the time of the infringement
the premium for Chiquita branded bananas and the actual prices were lower for
Portugal than for Italy or Greece.179 Pacific has also confirmed that in Portugal, it
was [...] that achieved the highest prices on the market, whereas Chiquita was at the
same (lower) price level as Bonita (Pacific) and [...].180
(117)
With regard to Mr [...]'s notes concerning Greece, apart from the accurate description
of Chiquita's business structure181, they refer to discussions on shipping cooperation
between Chiquita and Pacific in relation to the ports of Salerno (Italy) and Aegion
(Greece). Both Chiquita and Pacific confirm that discussions on shipping cooperation
took place at the time and such discussions continued, according to Chiquita, until
June 2006.182 As for Mr [...]'s reference to Chiquita reducing the supply of Consul
branded bananas to Greece ("also reduce Consul […] Chiquita's idea: all Chiquita,
only premium brand"), it is confirmed that Chiquita reduced its sales of Consul
174
175
176
177
178
179
180
181
182
EN
Recital 179 of Pacific’s reply to the Statement of Objections, see also recitals 228, 295-296 of Pacific’s
reply to the Statement of Objections and Pacific’s letter of 7 September 2010.
See, for example, recital 155 and sections 5.2 and 7.2.3 of Pacific’s reply to the Statement of
Objections.
See part 4 of the recording of the Oral Hearing, from 02:17:40 to 02:19:55.
The notes state as follows: "[...] (under [...]) Structure to be changed end of year"; Indeed, prior to
March 2006 when Chiquita started its own operation in Portuguese business, Chiquita had an agent in
Portugal headed by Mr [...], who in turn reported to Mr [...] (referred to as "[...]" in the notes) and Mr
[...] of Chiquita; see ID 2043, p. 17-18 (Chiquita's reply to request of information of 7 April 2009); ID
1732, p. 14 (Chiquita's organizational chart for 2004); ID 1732, p. 254 (Interview with Mr [...] during
inspections); ID 1717, p. 5 (Chiquita's reply to the 3rd request for information); ID 1732, p. 209-210
(Chiquita's strategic priorities for 2005).
ID 2043, p. 5 (Chiquita's reply to the 1st request of information).
ID 1705 (annex to Chiquita's reply to the 2nd request for information).
ID 1919, p. 5-6 (Pacific's reply to the 8th request for information).
The country manager for Greece reported to Mr [...] of Chiquita; see recital (10).
The notes state as follows: "shipping cooperation: Salerno to Aegion"; see ID 1898, p 12-13 (Pacific's
reply to the 5th request for information); [...]; ID 1731, p. 118 (annex to Chiquita's Oral Statement 1).
35
EN
branded bananas at the time, not having sold any Consul branded bananas since June
2004.183
(118)
With regard to the notes concerning Italy, it is confirmed that in line with what Mr
[...] had written down with regard to strategic discussions between Pacific and
Chiquita on the Italian market ("Decrease Consul 15,000/wk. […] Focus on
incr[easing] th[e] volume in Chiquita […] Give the space to Bonita […] Bonita
pushes prices"), Chiquita had in fact started increasing the sales volumes of Chiquita
branded bananas as from the second half of 2004184 and, in the course of 2005, would
reduce its sales of Consul branded bananas in Italy.185 In addition, Mr [...]'s strategy
related remarks are also confirmed by an internal Chiquita memorandum, containing
an analysis of the Italian banana market in the post-licensing regime period (that is to
say, the period after 1 January 2006), which Mr [...] drafted sometime in 2007 for the
attention of Mr [...].186 In line with Mr [...]'s notes, the Chiquita memorandum states
in relation to the company's strategy, sales actions and expectations as to Pacific's
(referred to as "Bonita") actions in the run-up to and beginning of the post-licensing
regime period as follows: "[a]t the dawn of the new system it would have been
opportune to expect a 'constraint' market between Chiquita and Bonita. This is one of
the reasons why Chiquita renounced from importing Consul. Unfortunately, while
the actions of Chiquita from the top of the market have been constant, the steering of
the market from the 'bottom' by Bonita has been totally inexistent."187
(119)
In suggesting that the Commission thinks that Chiquita wanted Pacific to push up
prices by steering the market from the bottom, Pacific misconstrues the context in
which Mr [...]’s memorandum was referred to in the Statement of Objections.188 The
Statement of Objections did not go beyond the wording of the memorandum, which
however clearly shows that Chiquita expected a “steering of the market from the
'bottom' by Bonita” and was disappointed by the results.
183
184
185
186
187
188
EN
ID 2034, p.12 and 14 (Chiquita's sales in Greece, annex to reply to 1st request for information) and ID
2043, p. 14 (Chiquita's reply to the 1st request for information, 1.49). With the exception of week 15 of
2005, Chiquita did not sell any Consul branded bananas in Greece between week 23 of 2004 and at least
week 11 of 2006.
ID 2033 (Chiquita's Italian sales by brand). In relation to 2003, sales of Chiquita branded bananas in
Italy were 4.9% higher in 2004, 9.3% higher in 2005 and 8.1% higher in 2006. On average, Italian sales
were 5% higher during the period 2004-2006 than they had been during the period 2001-2003.
According to the figures provided by Chiquita, sales of Chiquita's competitors' bananas in Italy were
3.8% higher in 2004, 8.8% lower in 2005 and 7.8% higher in 2006, see ID 1704 and ID 2033.
As of week 18 of 2005 the sale of Consul branded bananas fell significantly and after week 23 of 2005
there were hardly any sales of Consul branded bananas. Indeed, a reduction of 15 000 boxes per week,
as referred to by Mr [...] in the notes, would have corresponded to a reduction of volume of Consul
branded bananas by approximately 75% in Italy; see ID 2033 (Chiquita's Italian sales by brand)
ID 2014, p. 5-6 (Chiquita inspection document AKe2). It appears from the document text that it was
drafted sometime in 2007, see ID 1552, p 26-27 (Chiquita's Oral Statement 9); ID 1650, p. 2 (Chiquita's
submission of 13 October 2009); Chiquita's and Pacific's replies to the Statement of Objections; As to
the authorship, see the written declaration signed by Mr [...] (ID 1650, p 5 (annex to Chiquita's
submission of 13 October 2009)).
Italian original: "All' alba del nuovo sistema sarebbe stato opportuno aspettarsi un mercato 'costretto'
tra Chiquita e Bonita, questo è uno dei motivi per i quiali la stessa Chiquita rinunziò ad importare il
Consul. Purtroppo l'azione di Chiquita dall'alto sul mercato [è] stata costante ma il governo del
mercato dal 'basso' da parte di Bonita è stato totalmente inesistente."
Recitals 220 et seq of Pacific’s reply to the Statement of Objections referring to recital 109 of the
Statement of Objections.
36
EN
(120)
On the basis of the above factual verifications and the corroborating internal Chiquita
memorandum, it is concluded that Mr [...]'s hand-written notes of 28 July 2004
constitute a credible piece of contemporaneous evidence reproducing accurately the
market conditions and Chiquita's and Pacific's intentions and strategic thoughts at the
time of the meeting. In addition, the content of those notes is in line with the other
evidence of the infringement, namely the follow-up contacts in August 2004, the email of 11 April 2005 and Chiquita’s submissions (see recitals (98) and (103)).
4.2.4.
Evidence with regard to follow-up contacts in August 2004
(121)
While Chiquita has stated that following the meeting of 28 July 2004, and starting
from September 2004, Mr [...] of Chiquita and Mr [...] of Pacific started calling each
other on an irregular basis (see recital (101)), the contemporaneous and other
evidence in the Commission file shows that the price related contacts were more
frequent than submitted by Chiquita and started almost immediately following the
meeting of 28 July 2004.189 While the precise timing of the contacts is different from
what Chiquita recalls, the substance of the illegal conduct is consistent with
Chiquita's statements (see recitals (100)-(101)).
(122)
Mr [...]'s handwritten notes reveal that on two separate instances in August 2004,
roughly a week and two weeks after the 28 July 2004 meeting, Mr [...] of Pacific was
first in contact with Mr [...] and then with Mr [...] of Chiquita to discuss future prices
in Greece and the market developments in Portugal respectively. Those
contemporaneous hand-written notes constitute evidence of the first follow-up
contacts between Chiquita and Pacific after the meeting of 28 July 2004 and confirm
that the meeting of 28 July 2004 was not simply an isolated incident but that, in line
with the collusive scheme set up by Chiquita and Pacific on 28 July 2004, the parties
took follow-up action to implement it.
(123)
It is apparent from Mr [...]'s hand-written notes that there was a contact between Mr
[...] of Pacific and Mr [...] of Chiquita on Friday 6 August 2004 (week 32). Despite
the fragmentary nature of those notes, it is clear that pricing information was
exchanged. Such an exchange is in line with the collusive scheme that was set up at
the 28 July 2004 meeting. The notes read as follows:
"
[...]
Aug 6, 2004
à Chiquita à€ 11,50 – 75
€ 10,50 – 75 –
Greece
à We are going there next week
93.000 boxes for 2 weeks
à 20.000 boxes for T1
à problem w/ Olympics: transport every
189
EN
See recitals (123), (125), (127) and (130). See also [...], ID 1732, p. 259 (Statement by Mr [...] on behalf
of Chiquita, in an interview carried out by Commission officials under Article 19 of Regulation (EC)
No 1/2003 during the inspections).
37
EN
thing stopped.
à W33 – No Chiquita vessel
à Bonita: € 10,75 à 0,25 (transport)
Chiquita € 10,75 actual à not bellow [sic]
[...]: €
à 54347 – Bananas
+ pineapples + General Cargo to Spain
à 0,64/0,65/kg – Supermarkets = € 12,25
Greece à
€ 15,50€ 16,25- same levels
12,32 € Yellow –"190
(124)
Mr [...]'s notes show that Pacific and Chiquita also having discussed their respective
schedule for vessel arrivals,191 and discussed and exchanged information on prices. It
is not possible (due to the passage of time) to interpret and trace back all the details
relating to these notes, but it is clear that the price data discussed and exchanged by
Pacific and Chiquita related to prices in Greece and Italy, as confirmed by the fact
that the prices mentioned by Mr [...] ("Bonita: € 10.75 […] Chiquita € 10,75 actual
à not bellow" [sic] […] Greece à € 15,50- € 16,25 – same levels") correspond
closely to the T2 prices that Chiquita and Pacific actually achieved with their main
customers around the time of that contact.192 Such price discussions are in line with
the collusive arrangement which was set up by Chiquita and Pacific at the meeting of
28 July 2004 whereby the parties would collude on prices (see recital (106)).
(125)
Mr [...]'s notes also reveal that another contact between Pacific and Chiquita took
place shortly after 11 August 2004 during which Mr [...] of Pacific and Mr [...] of
Chiquita at least discussed the [stable] market conditions on the Portuguese market.
Mr [...]'s hand-written notes read as follows: "Chiquita à [...] [sic] […] Portugal –
stable".193 Indeed, the stability of the Portuguese business is confirmed by Chiquita's
actual prices achieved for green bananas in Portugal during the period 6-20 August
2004.194
190
191
192
193
194
EN
ID 1983, p. 15 (document obtained from GdF, allegato 15).
The notes state as follows: "[Pacific] are going there next week […] W33 – No Chiquita vessel";
Chiquita has confirmed that no Chiquita vessel arrived in Greece in week 33 of 2004 whereas Pacific
has confirmed that its vessel discharged in Greece only on 17 August 2004, namely in week 34 of 2004;
see ID 2043, p. 12 (Chiquita's reply to the 1st request for information); ID 1900, p 8 (Pacific's reply to
the 6th request for information)
Chiquita has submitted that for its main Greek customers the actual green T2 price per box in week
33/2004 was EUR 15.00-15.50 and that for most of its main Italian customers the actual green T2 price
per box in week 33/2004 was EUR 16.00-16.25; see ID 2024, p 20 and ID 2044, p 6 (annex to
Chiquita's reply to the 1st request for information); Pacific has submitted that for its main Greek
customers the actual T2 price per box in week 31/2004 (when a Pacific vessel arrived in Greece) was
EUR 10.50-10.75 and for its main Greek customers the actual T2 price per box in week 34/2004 (when
the following Pacific vessel arrived in Greece) was EUR 10.25; see ID 1866 (annex to Pacific's reply to
the 3rd request for information). ID 1934, 1938 (Pacific's reply to the 9th request for information)
ID 1983, p. 26 (document obtained from GdF, allegato 15).
The actual price per box of green Chiquita bananas stayed stable at EUR 10.75 and, for one customer
stable at EUR 11.00, during the period 6-20 August 2004; see ID 1342 (price list of Chiquita's agent in
Portugal ([...]))
38
EN
4.2.5.
Evidence with regard to further contacts in February-April 2005
(126)
The continuation and implementation of the price coordination scheme that was set
up by Pacific and Chiquita during the meeting of 28 July 2004 is further evidenced
by an internal Pacific e-mail sent by Mr [...] to his superior Mr [...] ([...] of PFCI and
[...] of FSL Holdings NV and Firma Leon Van Parys NV) on Monday 11 April 2005
(week 15/2005) at 9:57 am and by an undated table entitled "Chiquita Prices – 2005"
which contained Chiquita price information for weeks 6-13 of 2005. 195 Together,
those documents show the almost weekly occurrence of price collusion between Mr
[...] of Pacific and Mr [...] of Chiquita in the period between February and early April
2005 (weeks 6/2005 to 15/2005).
(127)
In his e-mail of 11 April 2005, Mr [...] reports to Mr [...] of Pacific about the content
of his recent collusive price contacts with Mr [...] of Chiquita ("Following is an
update of the prices discuss with [...]") including sensitive pricing information
concerning Chiquita.196 The relevant part of the e-mail message is shown below:
195
196
EN
ID 1860, p. 2 (Pacific inspection document DWY 12); ID 1861 (Pacific inspection document DWY 13)
Chiquita submits that Mr [...] denied having made such statements as contained in the e-mail; see [...];
Pacific submits that PFCI's [...], to whom the e-mail was addressed, assumes that "P&S" refers to
"Portugal and Spain" and "[...]" to "[...]"; see ID 1859, p. 8 (Pacific's reply to the 3rd request for
information); Also Chiquita recognises that "[...]" "potentially" refers to "[...]"; see ID 1650, p. 9
(Chiquita's submission of 13 October 2009)
39
EN
(128)
The table which is contained in the e-mail shows Chiquita's banana prices ("Chiquita
Prices – 2005 […] Gross Prices in Euro") for weeks 9 to 15 of 2005 separately per
brand (Chiquita and Consul) and Member State (Italy, Greece and Portugal). In
respect of the week of Monday 11 April 2005, namely week 15, the prices are
marked "(f)" for forecast, showing collusion on future prices. The forecasted
Chiquita prices for Italy, Greece and Portugal correspond, furthermore, to the T2
prices that Chiquita actually achieved with its main customers in that week.197
(129)
With reference to the Chiquita prices listed in the table for the various weeks, a set of
explanatory notes at the bottom of the table show the content of Mr [...]'s almost
weekly collusive contacts on future prices with Mr [...] of Chiquita. The notes read as
follows: "Week 10 - he will increase P&S [Portugal and Spain] to our levels"; "Week
13 - Chiquita is feeling the pressure to reduce prices only in Italy (after easter). We
both agreed that we should remain with prices unchanged"; "Week 14 - Chiquita is
feeling the pressure to reduce prices in Italy, specially the North. He call to ask that
we share our strategy for next week and try to remain unchanged"; "Week 15 – […] I
spoke to [...] [[...]] and he will give instructions to keep alll [sic] prices unchanged".
(130)
The almost weekly occurrence of such collusive contacts in the period FebruaryApril 2005 is further evidenced by the undated table entitled "Chiquita Prices 2005" which was found in print-out format in the same binder in Mr [...]'s (Pacific)
office as the e-mail of 11 April 2005, and consisted of an earlier version of the same
table as was contained in the e-mail of 11 April 2005.198 The table is shown below:
197
198
EN
See ID 2044, p. 8 (for Chiquita branded bananas in Italy), ID 1710, p. 3 (for Consul branded bananas in
Italy), ID 2024, p. 28 (for Chiquita branded bananas in Greece, the price indicated is however at the
lower level of the band of prices charged to customers) and ID 1344, 1345 (for Chiquita branded
bananas in Portugal).
The Commission has asked Chiquita and Pacific to submit weekly initial prices which they use to start
negotiations with their customers. Chiquita states that it only communicated such prices orally to
customers and that it is therefore not able to submit initial prices to the Commission (ID 2043, p 9).
Pacific submits that it does not have any such price at all (see, for example, ID 1849, p 8). The
Commission considers that is it not credible that a major importer of bananas into Europe does not
internally agree on a certain price level on the basis of which it would start its negotiations with its
customers.
Therefore, the Commission has asked the addressees to submit weekly actual prices for their respective
main costumers. When determining price levels in this Decision for any given week the Commission
used the following methodology: The Commission considers on the basis of the information on price
setting available to it (see recital (40) et seq.) that Chiquita's initial price is equal or very near to the top
price level of the band of prices actually agreed each week with the main customers excluding peak
prices which, for single customers in single weeks, are clearly higher or clearly lower than the band of
actual prices agreed with the large majority of main customers. The same assessment is also applied for
the determination of the desired price level which Pacific must have had in mind when starting
negotiations with its customers.
ID 1861 (Pacific inspection document DWY 13); p. 7 (Pacific's reply to 4th request for information); ID
1986 (inspector's list), ID 1885: the copy of the e-mail of 11 April 2005 and the undated table were
copied during inspections from a Pacific binder entitled “price forecasts”.
40
EN
(131)
Whereas the table in the e-mail of 11 April 2005 related to weeks 9-15 of 2005, the
undated table entitled "Chiquita Prices - 2005" relates to weeks 6-13 of 2005 and
contains the same explanatory notes for weeks 10 and 13 as the table in the e-mail of
11 April 2005 ("Week 10 - he will increase P&S [Portugal and Spain] to our levels";
"Week 13 - Chiquita is feeling the pressure to reduce prices only in Italy (after
easter). We both agreed that we should remain with prices unchanged"). This fact
confirms, as stated by Mr [...] in his e-mail of 11 April 2005 ("Following is an
update of the prices discuss with [...]"), that the table and explanatory notes were
updated on a regular, almost weekly, basis by Mr [...] of Pacific upon him colluding
with Mr [...] of Chiquita on the weekly prices for green bananas in the three Member
States concerned, namely Portugal, Greece and Italy.
(132)
Pacific argues in its reply to the Statement of Objections that there is nothing in the
e-mail of 11 April 2005 to indicate that the company obtained pricing information
from its competitors or that it had obtained confidential information prior to its
disclosure in the market. Pacific argues that the e-mail contains non-sensitive market
information and refers in this respect to what is stated in relation to week 13, namely:
"Chiquita is feeling the pressure to reduce prices only in Italy (after easter)". Pacific
claims that this is not confidential information, but information about an annually
recurring development on the market. Moreover Pacific points to Chiquita’s
statement that the "market information" (the notes for weeks 10 to 14) could have
originated from other sources, in particular customers, and that the note for week 15
might be an assumption of Mr [...] of Pacific based on statistical information.199
(133)
Contrary to Pacific’s argument, the e-mail of 11 April 2005 shows the exchange of
competitively sensitive information between Pacific and Chiquita. The information
in the e-mail of 11 April 2005 originates from Chiquita and shows how Chiquita
disclosed its future price intentions to Pacific. In its attempts to show that the e-mail
of 11 April 2005 does not constitute evidence of an infringement, Pacific makes
selective use of quotes found therein. For example, in relation to the notes on week
13 (see recital (132)), Pacific fails to mention that the sentence "Chiquita is feeling
the pressure to reduce prices only in Italy (after easter)" is followed by clear
199
EN
ID 1650, p. 8-9 (Chiquita's submission of 13 October 2009) and Chiquita’s reply to the Statement of
Objections, recital 123. See section 5.4.1 of Pacific’s reply ot the SO
41
EN
evidence of an agreement on future pricing, namely "We both agreed that we should
remain with prices unchanged". Pacific’s observations as to the accuracy and origin
of the Chiquita related information contained in the e-mail of 11 April 2005 are
clearly contradicted by the wording used in the e-mail itself ("Following is an update
of the prices discuss[ed] with [...]" and "Week 15 - … I spoke to [...] and he will give
instructions to keep all prices unchanged"). Such statements cannot be regarded as
relating to general market conditions only. The wording of the e-mail of 11 April
2005 is, rather, self-explanatory and shows unequivocally that Pacific discussed
future prices/price intentions with Chiquita. Pacific does not provide any evidence
that would shed a different light on the content of the e-mail of 11 April 2005 and the
contacts described therein.
(134)
While there is nothing in the e-mail of 11 April 2005 to support it, Pacific argues in
its reply to the Statement of Objections that the table contained in the e-mail had
likely been prepared by Mr [...] of Pacific on the basis of input from Pacific’s sales
team following their negotiations with customers. According to Pacific, by the time
the e-mail of 11 April 2005 was actually sent (9:57am) it is likely that Chiquita had
already communicated its prices to the market and that Mr [...] (Pacific's [...] for
Italy) had talked to customers and been informed about Chiquita's pricing decision
by the customers. According to Pacific, the e-mail did not, in any case, have any
impact on Pacific's behaviour in the market.200
(135)
Pacific itself has indicated that its weekly negotiations with its Italian customers
started on Monday mornings at around 10am and that they were not necessarily
concluded at that time. Instead it admits that there are customers with which often
more than one negotiation (and sale) takes place during the course of a week201. In
the light of Pacific's explanations as to the set up of its weekly negotiations, the
company cannot successfully argue that the information contained in the e-mail of 11
April 2005 could not have had any impact on its commercial conduct.
(136)
Pacific further submits 202 that in respect of some weeks the prices in the table
contained in the e-mail of 11 April 2005 are inaccurate and argues that if those prices
had truly been the subject of a discussion between Mr [...] of Pacific and Mr [...] of
Chiquita as alleged in the Statement of Objections, one would reasonably expect that
Mr [...] would have inserted the correct prices for all of the weeks reported in the email. In addition, Pacific puts forward203 that a further internal e-mail from Mr [...] to
Mr [...] and others in Pacific undermines the credibility of the e-mail of 11 April
2005. That second e-mail, which was sent on 11 April 2005 at 11.24 am and entitled
“MED Weekly Price Report – W 15”,204 reports that the price in Italy was in fact
going down by 45 cents contrary to what Mr [...] of Pacific had assessed in his earlier
e-mail of 11 April 2005 at 9:57am. In the earlier e-mail of 11 April 2005, Mr [...] had
assessed that Pacific would be able to maintain a price of EUR 17 in Italy (contrary
to the general indication by Mr [...] (Pacific) that prices were going down).
According to Pacific, that reversal of statements as to the price development in Italy
200
201
202
203
204
EN
Recitals 259 et seq of Pacific’s reply to the Statement of Objections.
See Pacific's reply to the SO, recitals 76-78
See recital 265 of Pacific's reply to the Statement of Objections.
See recitals 263-264 of Pacific's reply to the Statement of Objections.
Annex 13 to Pacific’s reply to the Statement of Objections.
42
EN
shows that it was Mr [...] of Pacific, not Mr [...] of Pacific, who was responsible for
setting prices for Pacific.
(137)
Pacific's conclusions inferred from the statements in the second e-mail of 11 April
2005 are, however, inaccurate as the second e-mail reflects Pacific’s internal pricing
discussions. The first e-mail of 11 April 2005 reports that prices in the Italian
business were reported to be generally going down, but that there were reasons to try
to keep the price unchanged. The second e-mail of 11 April 2005 contains price
information that was intended to be included in Pacific's weekly report. 205 The
purpose of the two e-mails is evidently different.
(138)
What the two e-mails of 11 April 2005 do show is that Pacific had a clear idea of
what price levels should be achieved by its sales staff prior to discussions with
customers (see recital (45)), which clearly contradicts Pacific’s argument that it did
not have any initial price in mind when it entered into discussions with customers.
(139)
In any event, the Italian and Portuguese prices for Chiquita bananas mentioned in the
first e-mail of 11 April 2005 (9:57am) correspond to the upper level of the actual
prices achieved by Chiquita in the weeks concerned.206
The timing of collusive contact in relation to week 15 of 2005
(140)
205
206
207
EN
Considering that Mr [...]'s e-mail of 11 April 2005 contains information on Chiquita's
prices for week 15 of 2005 and an unmistakable reference to a collusive contact
between Pacific and Chiquita ("Week 15 – […] I spoke to [...] [[...]] and he will give
instructions to keep alll [sic] prices unchanged"), it is clear that a contact had taken
place between Mr [...] of Pacific and Mr [...] of Chiquita shortly before Mr [...] sent
his e-mail on Monday 11 April 2005. It is not possible to establish the exact timing
of the contact from the e-mail, as the timing of the e-mail itself, namely 09:57am on
11 April 2005, merely indicates the time by which, at the very latest, the collusive
contact between Pacific and Chiquita on future prices and pricing strategy for week
15 of 2005 could have taken place. Chiquita has denied that any of the price related
collusive contacts [...] took place in the period from 9 to 11 April 2005 and argues
that all contacts of an anti-competitive character had come to an end by the very
latest on Friday 8 April 2005 when Chiquita applied for immunity.207
See recital 264 of Pacific’s reply to the Statement of Objections.
See ID 2044, 1344, 1345. As Pacific points out for week 10, the Italian and Portuguese prices for
Chiquita bananas are indicated 20 Cents higher in the table than they appear in Chiquita’s actual price
tables. As regards Greece, see footnote 197 where it is explained that for Chiquita branded bananas the
price indicated is at the lower level of the band of prices charged to customers. It must also be pointed
out that Pacific overlooks that the prices contained in the table do not contain “duties, rebates and
discounts”. Moreover, it is by no means necessary – as Pacific presumes –that the parties must actually
have been able to realise to the full extent the prices or price changes they discussed when negotiating
with their respective customers. There is also no indication that the prices contained in the table would
be updated afterwards to correspond to the average prices that actually could be realised in any given
week.
See for instance Chiquita's reply to the Statement of Objections, part IV.A; ID 1650, p. 1 (Chiquita's
submission of 13 October 2009) or part 3 of the recording of the Oral Hearing, from 00:47:00 to
00:47:30.
43
EN
(141)
As pointed out by Chiquita, there are several elements suggesting that the contact
referred to in the 11 April 2005 e-mail between Mr [...] of Chiquita and Mr [...] of
Pacific had already taken place in the week that preceded the e-mail of 11 April 2005
(week 14).208 Firstly, the e-mail of 11 April 2005 refers to Aldi prices for week 15
and the fact that they had been determined on Thursday 7 April 2005 ("Week 15 –
[…] Aldi remains unchanged (Thursday of Week 14)"). Secondly, the e-mail refers to
prices for marketing week 15 in relation to Greece and Portugal. In view of
Chiquita's schedule for vessel arrivals 209 , the Greek and Portuguese prices for
marketing week 15 had already been set and communicated by Chiquita to its
customers in the period Tuesday-Friday of the preceding week (week 14). Thirdly, as
argued by Chiquita, the fact that the information in the e-mail of 11 April 2005 is
very detailed and stems from different sources indicates that it is unlikely to have
been received by Mr [...] on the morning of Monday 11 April 2005 before he sent the
e-mail.210 Fourthly, there is a phone record indicating a contact between Mr [...] of
Chiquita and Mr [...] of Pacific on 7 April 2005 (see footnote 159).211 In addition, Mr
[...] of Chiquita was, from Sunday 10 April 2005 to Tuesday 12 April 2005, on a
business trip in Cincinnati (USA).212 Due to Mr [...]'s travel schedule and in view of
the time difference between Italy and the USA, it is unlikely that there would have
been any contact between Mr [...] of Pacific and Mr [...] of Chiquita on the morning
of Monday 11 April 2005.213
(142)
For those reasons, the communication between Mr [...] of Chiquita and Mr [...] of
Pacific must have already taken place before Monday 11 April 2005, that is to say
during the week of Monday 4 April to Sunday 10 April 2005.214
4.3.
Assessment of other arguments of the parties
4.3.1.
Pacific’s general observations
(143)
In its reply to the Statement of Objections Pacific looks at each piece of information
in isolation, carving out and on numerous occasions selectively quoting single
written or oral statements, and then submits that the relevant piece of information
alone is neither sufficiently precise nor conclusive to find an infringement of the
competition rules.215
(144)
Contrary to Pacific’s submission, the Commission bases its findings of an
infringement on a solid body of contemporaneous evidence concerning the whole
period of the infringement, namely the documents described in recitals (105), (123),
208
209
210
211
212
213
214
215
EN
ID 1650, p. 9 (Chiquita's submission of 13 October 2009); Chiquita statement during the Oral Hearing
on 18 June 2010.
Chiquita’s volume tables for marketing weeks 9 to 16 of 2005 (ID 1125) set out that the vessel
attributed to marketing week 15 called (i) in Italy at Genova on 11 April 2005 (Monday of calendar
week 15) and at Salerno on 13 April 2005 (Wednesday of calendar week 15), (ii) in Greece at Aegion
on 10 April 2005 (Sunday before) and (iii) in Portugal at Setubal on 8 April 2005 (Friday before).
ID 1650, p. 9 (Chiquita's submission of 13 October 2009).
Chiquita statement during the Oral Hearing on 18 June 2010.
ID 1650, p. 8-9, 13, 17-18 (Chiquita's submission of 13 October 2009 and annexes thereto).
09:57am in Rome (Italy), that is to say, the time that Mr [...] sent his e-mail to Mr [...], corresponds to
03:57am in Cincinnati (USA).
Mr [...]'s telephone records indicate a contact on Thursday, 7 April 2005, see footnote 159.
Pacific’s reply to the Statement of Objections, recitals 172-175.
44
EN
(125) and (126) and the corporate statements of Chiquita (see section 4.2.2). All
those documents originate from Pacific or its managers. In addition, those documents
are consistent with Chiquita's submissions as to the nature of the competitor contacts.
4.3.2.
Alleged legitimate contacts with competitors
(145)
Pacific argues on numerous occasions in its reply to the Statement of Objections that
the contacts between Pacific and Chiquita had a legitimate purpose and content,
namely the co-shipping and co-sourcing of bananas, and that the notes should be read
purely in that context.
(146)
Pacific argues 216 that, in spite of two on-site inspections by the Commission, a
document search of [...] documents and more than [...] interviews [...], no
contemporaneous documents showing the alleged infringement have been found at
Chiquita, nor has the Commission found any “other” documents from Pacific than
the ones described in sections 4.2.3-4.2.5. Pacific argues that if Chiquita and Pacific
did enter into any such arrangement as the Commission alleges, it is not credible that
no traces of such conduct was left in its written records. Instead, Pacific submits that
Chiquita has found an abundance of records that support Mr [...]'s (Chiquita)
statements as to the legitimate reasons for him to have contacts with Mr [...] of
Pacific.217
(147)
The claim that there were contacts between competitors which were allegedly
legitimate does not in any way rule out the possibility that collusive contacts also
took place. In view of the fact that, in this business, contacts (irrespective of whether
they were collusive in nature or not) seem to have occurred exclusively orally (see
recital (90)), it is not surprising that written traces of the collusion are limited.
(148)
Furthermore, despite the parties' internal searches, neither party has provided any
contemporaneous documents of the meeting of 28 July 2004 to substantiate their
claims that everything which was discussed during that meeting was of a purely
legitimate nature. The only contemporaneous records of that meeting are the
handwritten notes and calendar entry of Mr [...] of Pacific and Mr [...]’s (Chiquita)
expense records (see section 4.2.3). In relation to the e-mail of 11 April 2005 and the
contacts on pricing that took place between Pacific and Chiquita in the period
preceding it, Pacific has not provided any contemporaneous documentary evidence to
support its alternative explanation for the allegedly legitimate content of such
contacts. The only contemporaneous documents describing the content of such
pricing contacts are the e-mail of 11 April 2005 and the undated table entitled
"Chiquita Prices – 2005" referred to in recital (126).
(149)
Pacific submits218 with regard to the meeting of 28 July 2004 that it was intended as
an opportunity for Mr [...] of Chiquita and Mr [...] of Pacific to get to know each
other and to facilitate the work in the trade association ANIPO, as well as to explore
the possibility for Chiquita to source bananas from Pacific or joint-shipping
arrangements.
216
217
218
EN
Pacific’s reply to the Statement of Objections, recitals 313-320.
Pacific refers in this context to [...].
Recitals 181-183 of Pacific’s reply to the Statement of Objections.
45
EN
(150)
According to Pacific219 the explanation given by Chiquita that the possible sourcing
of bananas from Ecuador was discussed at the 28 July 2004 meeting is fully
consistent with the fact that Chiquita was, at the time, in short supply of licences and
was actively seeking alternative supplies. In Pacific’s view, contemporaneous
documents submitted by Chiquita also provide support for that claim 220 . Pacific
argues that Chiquita had approached Mr [...] of Pacific unsuccessfully at an earlier
moment and in the summer of 2004 tried to contact Mr [...] of Pacific. Pacific claims
that Mr [...], upon hearing of Mr [...]'s contacts with Mr [...] (Chiquita) on this
subject, quickly stopped Mr [...] from pursuing this idea of sourcing bananas for
commercial reasons.
(151)
While it appears that some of the topics suggested by Pacific in its Statement of
Objections reply were also discussed between Chiquita and Pacific (see the reference
in Mr [...]'s notes to "Shipping cooperation: Salerno to Aegion weekly business for
Bonita"), these were not the sole topics discussed at the meeting. 221 The
contemporaneous notes provide clear evidence of pricing discussions in relation to
Portugal, Greece and Italy, while not providing any support for Pacific's alternative
claim that the meeting discussions concerned the trade association ANIPO and the
role of a representative of a competitor therein.
(152)
In any case, Pacific's reply to the Statement of Objections confirms the reliability of
Mr [...]'s handwritten notes. Pacific admits that shipping cooperation was discussed
between Pacific and Chiquita and the notes indeed contain a reference to that subject,
among the discussions on pricing relating to Portugal, Greece and Italy. Apart from
what has already been stated in recitals (147) and (151), it is also noted that Pacific's
claims tha Mr [...] stopped Mr [...] (Pacific) from pursuing co-loading/co-shipping
discussions in the summer of 2004 are not credible in the light of Chiquita’s internal
e-mail of 23 February 2005222 which clearly shows that, 6 months later, Mr [...] of
Pacific and Mr [...] of Chiquita were still pursuing the same discussions, with
theadditional involvement of Chiquita’s and Pacific’s European headquarters.
(153)
Pacific argues that Mr [...]'s notes of the meeting dated 28 July 2004 should be
understood in the context of the discussions on sourcing and co-shipping between
Pacific and Chiquita. In this respect Pacific for example considers that the reference
in Mr [...]’s notes to a "local agreement" which would be "too big (H Office) not
possible" may refer to the fact that involving the head offices in the sourcing and coshipping plans would be too complicated and it would be better to agree on such
measures locally. Pacific also argues that the notes relating to Greece indicate that
Mr [...] of Chiquita provided Mr [...] of Pacific with an overview of Chiquita's
operations in Greece in order to convince Mr [...] of the benefits of entering into an
219
220
221
222
EN
Recitals 184-192 of Pacific’s reply to the Statement of Objections. Pacific refers in this context to
Chiquita’s Oral Statement 9.
In this context Pacific refers to an e-mail of 5 July 2004, ID 1733, p. 139 (e-mail from Mr [...] to Mr [...]
relating to a discussion with Noboa about co-loading arrangements), see also [...] and an e-mail of 23
February 2005 from Mr [...] to Mr [...] of Chiquita, ID 1731, p. 118 (e-mail reporting on the discussion
on co-loading and co-shipping between Mr [...] and Mr [...]).
An agreement may be regarded as having a restrictive object even if it does not have the restriction of
competition as its sole aim but also pursues other legitimate objectives, see Case C-551/03 P General
Motors, [2006] ECR p. I-3173, at paragraph 64.
ID 1731, p. 118 (e-mail reporting on the discussion on co-loading and co-shipping between Mr [...] and
Mr [...])
46
EN
agreement with Chiquita on sourcing and co-shipping. Pacific argues that Mr [...]'s
statement according to which Greece was "for later", under the section entitled
"Action Plan", served as an indication for Mr [...] to examine the co-shipping
arrangement for Greece at a later stage as this would require a significant change to
Pacific's shipping plans. 223 As a general remark, Pacific also emphasises that banana
prices were widely known in the business.224
(154)
With regard to Pacific's claims that Mr [...]'s notes should be understood in the
context of the discussions on sourcing and co-shipping between Pacific and Chiquita,
there is nothing in Mr [...]'s notes to support such an assumption or argument, nor has
Pacific submitted any documents to support its claims to that effect. In view of the
follow-up contacts between Pacific and Chiquita on pricing from August 2004 until
April 2005, it is clear that the "Action Plan" referred to in Mr [...]'s notes reflects the
content of the discussions at the meeting of 28 July 2004 between Mr [...] of Pacific
and Mr [...] and Mr [...] of Chiquita and their intention to engage in price
coordination.
(155)
Contrary to Pacific’s argument, competitor contacts do not become legitimate
because banana prices were widely known in the business. 225 There is a vital
distinction to be made between competitors independently gleaning information or
even discussing future pricing with customers and third parties, and discussing price
setting factors or the evolution of prices with competitors before deciding upon their
weekly prices. It has not been demonstrated that any of the available publications
revealed competitors' views disclosed in communications or competitors'
expectations or intended course of action in relation to prices. Moreover, even if
information discussed or disclosed by the parties was known to customers or other
trade players, this would not alter the conclusion that such discussions among
competitors were anti-competitive. Since bananas are perishable goods and prices are
widely known once pricing discussions with customers start, competitors have an
incentive to concert on prices before they go to the market.226 Therefore, Pacific's
argument highlights the reason for colluding.
(156)
Regarding the e-mail of 11 April 2005, Pacific argues227 that it was prepared in the
context of a "benchmarking exercise" by which Pacific's "performance vis-à-vis its
competitors" was assessed. Furthermore, Pacific argues that in view of Chiquita’s
attempts to source bananas from Pacific, it is likely that Mr [...] of Chiquita and Mr
[...] of Pacific would have had a couple of discussions during which general remarks
may have been made by Mr [...] which were then interpreted and inflated by Mr [...]
to show his importance within Pacific.228
223
224
225
226
227
228
EN
Recitals 225 and 227, section 5.2.3 of Pacific’s reply to the Statement of Objections.
See Pacific’s letter of 7 September 2010.
The mere fact of receiving information concerning competitors, which an independent operator
preserves as business secrets, is sufficient to demonstrate the existence of an anti-competitive intention,
see Case T-53/03 BPB v Commission [2008] ECR II-1333, at paragraph 154. See also case T-54/03
Lafargev Commission, [2008] ECR p. II-120, at paragraphs 462-463.
See, for example, Case T-54/03 Lafarge v Commission [2008] ECR p. II-120, at paragraph 463.
Recitals 246-269 of Pacific’s reply to the Statement of Objections.
Recital 262 of Pacific’s reply to the Statement of Objections.
47
EN
(157)
Pacific’s arguments are clearly contradicted by the wording of the e-mail dated
11 April 2005 which is compelling evidence of price coordination between Chiquita
and Pacific in weeks 6-15 of 2005. As the document clearly indicates, the price table
and the notes under it originate from Chiquita and not from internal or public
sources. Pacific's argument that the pricing discussions evidenced by that e-mail
formed part of benchmarking exercises does not in any way excuse their
anticompetitive content.
4.3.3.
Pacific’s arguments based on Chiquita statements
(158)
Pacific claims 229 that Chiquita’s statements 230 contradict the Commission’s
objections. According to Pacific, and contrary to what was alleged in the Statement
of Objections, Chiquita's early statements are consistent with those made at a later
stage of the proceedings and confirm the existence of legitimate reasons for the two
parties to have had contacts with each other (in this regard, see recitals (145)-(148)).
Pacific argues that Chiquita has confirmed (i) that it was not aware of any evidence
showing that an infringement consisting of the exchange of competitively sensitive
information occurred, and (ii) that its employees have stated that there were no
illegal communications between competitors. 231 Pacific also refers to Chiquita’s
explanations regarding the e-mail of 11 April 2005 and Mr [...]'s (Chiquita)
statements that (iii) he never discussed more than general market tendencies with Mr
[...] of Pacific and that the specificity of the e-mail of 11 April 2005 was not
consistent with the type of discussion that he he engaged in232 and that (iv) he did not
recall having agreed on prices with Mr [...] of Pacific and the latter may have
exaggerated the contents of their conversations.233
(159)
Contrary to Pacific’s view, Chiquita’s statements are overall consistent with the
finding of an infringement in this decision and in line with the documentary evidence
in particular that originating from Pacific referred to in section 4.2, even though they
contain certain defensive passages. The prevailing principle in Union law is that of
unfettered evaluation of evidence and the only relevant criterion for assessing
evidence lies in the reliability thereof. Accordingly, whilst the lack of clarity of an
item of evidence may reduce its value as evidence, that is no reason for rejecting it in
its entirety.234 The interview with Mr [...] of Chiquita, which was conducted during
the inspections in November 2007, was made at a time when Mr [...] had yet to
prepare a defence line and the statements made in that context are, therefore,
particularly credible. Whilst Mr [...] has, on occasion, been reluctant to disclose his
full knowledge about the cartel behaviour, he nevertheless [...]. Furthermore, by email of 17 April 2005235 (sent 10 days after its immunity application) Chiquita’s [...]
229
230
231
232
233
234
235
EN
Recitals 289-312 of Pacific’s reply to the Statement of Objections.
In this respect Pacific refers to the minutes of Mr [...]’s interview during the inspections in November
2007, [...] as well as the submission of 13 October 2009 (ID 1650, re-submitting the factual parts of the
reply to the state of play letter for the purposes of granting access to the file).
See recitals 303-306 of Pacific’s reply to the Statement of Objections.
Recital 251 of Pacific’s reply to the Statement of Objections and [...].
Recital 254 of Pacific’s reply to the Statement of Objections and Chiquita's submission of 13 October
2009, ID1650, p. 15.
See Joined Cases T-67/00, T-68/00, T-71/00 and T-78/00, JFE Engineering a.o / Commission, [2004]
ECR p. II-2501, at paragraphs 263 and 273, and Case T-110/07 Siemens / Commission, not yet reported,
at paragraph 54.
ID 1014, p. 2.
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EN
for Europe warned members of its staff - including Mr [...] - that the company would
consider disciplinary action against those who failed to report, within 48 hours, their
knowledge of any anti-competitive competitor contacts. According to Chiquita, Mr
[...] was interviewed for the first time the day after the expiry of that deadline. The
fact that Mr [...] failed to report the collusive contacts with Pacific within the 48 hour
deadline had presumably affected negatively his willingness to report his knowledge
of the collusion once the proceedings started in this case in 2007 for fear of
disciplinary action (as he had not reported on the price contacts with Pacific within
the deadline in 2005). In its reply to the Commission's state of play letter Chiquita
explained the disciplinary measures that its employees would risk for any breach of
Chiquita's compliance measures (be it non-termination of possible illegal conduct,
inappropriate communications with competitors or provision of incomplete,
misleading or false answers) up to and including termination of employment and that
Mr [...] has consistently been informed of such consequences since 2005236. In the
light of this, the defensive nature of some statements made by Chiquita several years
after the facts at issue cannot cast doubt on the probative value of the precise and
detailed information contained in the documentary evidence drawn up by Pacific at
the time of the infringement which has also been corroborated by Chiquita’s
statements.
(160)
Pacific refers to the fact that Mr [...] of Chiquita has indicated that the calls with Mr
[...] of Pacific were most frequent in the second half of 2004 due to the discussions
related to ANIPO at the end of the quota regime. In view of the content of the calls,
Pacific assumes that Mr [...] of Chiquita actually intended to refer to the end of 2005
(not the end of 2004), which would be consistent with the telephone records
submitted by Pacific.237
(161)
Chiquita's statements are, however, consistent with the documentary evidence and
support the conclusion that future prices were discussed between the two parties
from the meeting on 28 July 2004 until early April 2005, as reported in the e-mail of
11 April 2005. There is no reason to assume that Mr [...]'s (Chiquita) recollection of
the timing of the calls is erroneous. In that context, Pacific has only submitted partial
telephone records and Chiquita has not provided any.
(162)
Regarding price discussions, Pacific claims238 that Mr [...] of Chiquita only refers to
discussions on "price variations" but not on actual prices. The company also argues
that Chiquita is wrong in referring to price movements of EUR 0.50. According to
Pacific it is pure speculation that the price trend discussions would be conducted in a
way that each party would know how the prices should move. Pacific submits that
Chiquita’s prices fluctuated by as much as EUR -2.00 to EUR +1.00 and that, on
occasion, the prices changed only by EUR 0.25.239 Pacific argues that its own pricing
data varied from changes of a few cents to more than EUR 2.00. Pacific argues that
the price data submitted by the parties is not in line with the idea that prices would
move by EUR 0.50 at a time. Therefore, Pacific concludes that Chiquita’s statements
are very general and non-price specific and that they are not supported by any facts.
236
237
238
239
EN
ID 1050, p. 17-19.
Recital 293 of Pacific’s reply to the Statement of Objections.
Recitals 294 and 308-311 of Pacific’s reply to the Statement of Objections.
Chiquita’s price data is referred to in footnote 197.
49
EN
(163)
The distinction drawn by Pacific between price variations and actual prices is
artificial. The banana business operates in weekly cycles and independently of
whether prices were discussed in terms of the specific amounts or price variations the
parties would, at the end of their discussion, understand how the competitor's prices
would develop. It is settled case-law that in order to restrict competition it is not
necessary to collude on actual prices. 240 Moreover, the e-mail of 11 April 2005
shows that the prices discussed concerned actual price levels. In order to find that an
infringement relates to actual price levels it is, however, not necessary – as Pacific
seems to argue – that competitors exchange customer specific actual prices. In
addition, the fact that prices could vary by more or less than EUR 0.50 does not
contradict Chiquita’s statements as they do not argue that prices would necessarily
vary by EUR 0.50. With that argument Pacific is wandering from the core of
Chiquita's statements which are also consistent with the documentary evidence:
namely, the parties exchanged price intentions for the following week in such a way
that both understood whether the prices should go up, go down or stay the same.
Such discussions on price "trends" reduce each party's uncertainty as its competitor's
prices compared to a situation in which each party decides on its behaviour
autonomously. Finally, Pacific’s statement about the range of its own price variations
does not contradict the Commission’s findings since Pacific’s argument seems to be
based on data on (not future) average prices.241
4.3.4.
Arguments relating to Mr [...]’s role, experience and character
(164)
According to Pacific,242 only one of its employees, namely Mr [...], was involved in
the collusive conduct. Pacific explains that Mr [...] worked as a financial controller
but due to the small size of the Italian office in which he was stationed, Mr [...] was
also required to take on administrative tasks as an office manager (formally referred
to as [...] or [...]). Pacific argues that Mr [...] was the [...] in Pacific and was in charge
of the company's sales team, and that Mr [...] carried out financial and benchmarking
analyses for him. According to Pacific, Mr [...] did not have any decision making
powers related to sales and he was not involved in price setting even though his role
in finance required him to pull together input for Pacific's weekly management
reports. Pacific claims that, in contacts with customers, Mr [...] would only deal with
issues such as late payments, bank guarantees and invoicing. Pacific also states that
when Mr [...] was present at meetings in which prices and volumes were decided, he
would only take part in the discussions relating to purely financial and administrative
issues. In Pacific’s view Mr [...] was not an experienced player in the business who
would understand the price implications of any “price trend” statements as described
in recital (100).243
240
241
242
243
EN
Case T-53/03 BPB v Commission, [2008] ECR p. II-1333, at paragraph 294.
The only indication Pacific gives about what it means with „pricing data“ is footnote 199 of its reply to
the Statement of Objections where it states that it has used for its analysis Chiquita’s weekly
predominant price agreed ex-ante with its main customers whilst using Pacific’s average actual prices
form its price reports. Such prices are, first, clearly not comparable and, second, it is evident that
average prices determined ex-post taking into account rebates and other price corrections do not vary in
steps of EUR 0.25 or 0.50 or multiples thereof.
Section 4 of Pacific’s reply to the Statement of Objections.
Pacific refers to recital 139 of the Statement of Objections. See recitals 308-309 of Pacific’s reply to the
Statement of Objections.
50
EN
(165)
Contrary to Pacific’s argument, it was not only Mr [...] who was involved in the
infringement on Pacific’s part, but also Mr [...] (manager in charge of the sales team).
Irrespective of his main responsibilities within Pacific, Mr [...] was present at and
participated in internal meetings in which prices were discussed and he reported to
Mr [...] about his collusive contacts with Chiquita. Reference is made to the e-mail of
11 April 2005 and the undated table (see recital (126)) which show that Mr [...]
reported directly to Mr [...] about his contacts with Mr [...] of Chiquita. Mr [...] also
discussed prices with the Pacific sales team members, for example, Mr [...], as
evidenced by the e-mail of 11 April 2005. Contrary to Pacific’s assertion, Mr [...]
was hence also involved in price setting discussions in addition to his benchmarking
exercises and in accordance with his statutory powers as [...] or [...]. Mr [...]’s
handwritten notes, in particular those which were drawn up during the period when
he was [...] at Pacific's Rome office, show Mr [...]'s direct involvement in the
management of the undertaking244.
(166)
Regarding Mr [...]’s notes, Pacific claims 245 (i) that Mr [...]’s notebooks were
personal notebooks in which professional and private issues were noted down, (ii)
that Mr [...] wrote his notes after the relevant events and (iii) that those notebooks
were not found at Pacific's premises but rather in Mr [...]'s private home and as a
result, cannot be considered as official business records of Pacific. Contrary to such
arguments, it is clear that the notebooks were mainly used for professional notetaking as evidenced by the fact that the overwhelming majority of the business
related notes contained therein were business related. There is nothing in Mr [...]’s
notes that would suggest that, if some notes were written after an event had taken
place, the notes did not correspond to the content of the discussions at that event.
Furthermore, the fact that the notebooks also contain personal notes does not
undermine their probative value. The notebooks contain records of Mr [...]’s business
activities at Pacific, no matter the location where the notebooks were physically kept
or subsequently found. In addition, the notes follow a chronological order of events
and dates, which indicates that the notes were written at the time of the respective
event.
(167)
Pacific argues that Mr [...] was relatively isolated at work and had very little
communication with the sales team in Pacific’s Rome office due to personal conflicts
with and his distrust of Messrs. [...] and [...], Mr [...]'s professional aspirations and
alleged problems in his private life246. Isolation and lack of communication in the
office cannot, however, constitute a credible explanation nor serve as a justification
for Mr [...]’s collusive contacts with Mr [...] of Chiquita. Apart from the statement by
Mr [...], Pacific's external legal counsel,247 which was prepared for the purpose of
244
245
246
247
EN
For example see 1981, p. 4, 7, 31-32, 34, 39, 47, 51 (GdF documents). ID 1731, p. 118 (annex to
Chiquita's Oral Statement 1) and the e-mail of 11 April 2005. A series of Pacific inspection documents
also evidence Mr [...]'s involvement in the decision making on prices and volumes and reporting to and
from PFCI's parent companies (for example, ID 1761, p. 16-18, 46, 68, 84, 106 and 143; ID 1765, p. 5;
ID 1766, p.2; ID 1770, p. 11; ID 1773, p. 9-13 and ID 1774, p. 3). Moreover, as [...] Mr [...] had wide
powers including the right to represent the company externally, conclude contracts and hire or fire
employees, ID 1919, p. 7 (Pacific's reply to the 8th request for information), see also ID 1920, p. 8-10
(extract of the Italian Company Register).
Recitals 149-150, section 5.2.1 of Pacific’s reply to the Statement of Objections.
Recitals 147-155 of Pacific’s reply to the Statement of Objections.
See Annex 11 to Pacific’s reply to the Statement of Objections, ID 2545.
51
EN
Pacific’s reply to the Statement of Objections, Pacific has provided no concrete
evidence to show the lack of credibility of the notes drafted by Mr [...]. On the
contrary, the file contains contemporaneous evidence showing that Mr [...] was
diligent in taking notes. By way of example, reference is made to a meeting of 14
January 2004 for which the hand-written notes of both Mr [...] and Mr [...] are
available. 248 The comparison of those two sets of notes reveals that they match
substantially both in terms of content and structure. In view of those elements, the
arguments put forward by Pacific concerning Mr [...]'s personal characteristics and
position within the company do not undermine the credibility and evidentiary value
of Mr [...]’s notes.
(168)
Furthermore, Pacific points out249 that Mr [...] of Chiquita has also described Mr [...]
of Pacific as new, young, disoriented and scared and that Mr [...] of Pacific was
considered a much more consistent person. Those statements are, however, quoted
out of their context and do not reveal any lack of experience on Mr [...]’s part. Mr
[...] of Chiquita has actually explained250 that his first impression when he met Mr
[...] of Pacific for the first time at a trade association (ANIPO) meeting was that Mr
[...] was a young guy, rather disoriented who was a little bit scared. That statement
relates only to their first encounter at a trade association meeting. Mr [...] (who was
more than 15 years older than Mr [...]) explains that Mr [...] was new and young and
that Mr [...] himself was among the youngest persons in the ANIPO association,
characterising the other participants as a “group of old foxes”. 251 Mr [...]’s
declaration concerning Mr [...]’s (Pacific) "consistency" actually reads as follows:
“in the beginning of 2006, I had a meeting, more PR-meeting than anything else in
Berlin with his boss, Mr [...], which we were told was much more consistent person
and to try to see if we could do something together” (emphasis added).252 Hence, this
was neither Mr [...]’s assessment of Mr [...] nor an assessment by Mr [...] at that time
or before that Mr [...] was not consistent or was less consistent than Mr [...].
(169)
Finally, Pacific questions the reliability of Mr [...]’s notes in view of his allegedly
poor command of English.253 Neither Mr [...]’s handwritten notes nor any of Mr [...]'s
reports to his superiors give any support to such claims. Overall Mr [...]’s notes are
neither unclear nor contradictory. The fact that a document is not drawn up by a
native speaker does not as such lead to the conclusion that the document is
unreliable. In addition, as confirmed by Pacific, Mr [...] studied in English at [...].254
248
249
250
251
252
253
254
EN
See ID 188, p. 11-12 (Mr [...]’s notes) and ID 905 (Mr [...]’s notes).
Pacific’s letter of 7 September 2010. In this respect Pacific quotes different statements during the Oral
Hearing.
See part 4 of the recording of the Oral Hearing, from 02:14:00 to 02:14:26.
See part 4 of the recording of the Oral Hearing, from 00:04:30 to 00:04:49.
See part 4 of the recording of the Oral Hearing, from 02:17:13 to 02:17:34.
Recitals 4, 150, 387 of Pacific’s reply to the Statement of Objections.
See part 1 of the recording of the Oral Hearing, from 00:40:16 to 00:40:22.
52
EN
5.
APPLICATION OF ARTICLE 101(1) OF THE TREATY
5.1.
Non-application of the EEA Agreement
(170)
This Decision exclusively concerns territories in which the Treaty applies. According
to points (a) and (b) of Article 8(3) of the EEA Agreement, the provisions of the
EEA Agreement only apply to products falling within Chapters 25 to 97 of the
Harmonised Commodity Description and Coding System and to products specified in
Protocol 3 of the EEA Agreement. Bananas are not covered by Chapters 25 to 97 of
the Harmonized Commodity Description and Coding System nor specified in
Protocol 3 of the EEA Agreement. Therefore, bananas are not subject to Article 53 of
the EEA Agreement and this Decision does not cover any arrangements concerning
territories in the EEA which are not Member States.
5.2.
Jurisdiction
(171)
In this case the Commission is the competent authority to apply Article 101 of the
Treaty, since the cartel had an appreciable effect on trade between Member States
(see section 2.4).
5.3.
Council Regulation No 26
(172)
Council Regulation No 26 applying certain rules of competition to production of and
trade in agricultural products,255 provides that Article 101 of the Treaty applies to all
agreements, decisions and practices which relate to production of or trade in the
products listed in Annex I to the Treaty, which includes fruit.
(173)
By way of exception, Article 2 of Regulation No 26 provides that Article 101 of the
Treaty does not apply to agreements, decisions and practices of three types:
(174)
255
EN
(a)
those which “form an integral part of a national market organisation”;
(b)
those which “are necessary for attainment of the objectives set out in Article
[39 of the Treaty]”;
(c)
agreements, decisions and practices “of farmers, farmers’ associations, or
associations of such associations belonging to a single Member State which
concern the production or sale of agricultural products or the use of joint
facilities for the storage, treatment or processing of agricultural products, and
under which there is no obligation to charge identical prices, unless the
Commission finds that competition is thereby excluded or that the objectives of
Article [39 Treaty] are jeopardised".
The exceptions set out in points (a) and (c) in recital (173) cannot apply in this case.
The organisation of the market for bananas is a common one, meaning that the
exception in point (a) is excluded. The exception in point (c) is also excluded since
Regulation No 26 OJ 30, 20.4.1962, p. 993 (English special edition: Series I Chapter 1959-1962, p.
129), was replaced by Council Regulation (EC) No 1184/2006 of 24 July 2006 applying certain rules of
competition to the production of, and trade in, agricultural products, OJ L 214, 4.8.2006, p. 7, as of 24
August 2006.
53
EN
the practices described in this Decision involve parties other than farmers. The
exception in point (b) cannot apply either. The practices at issue do not in any way
help to attain the objectives listed in Article 39 (1) of the Treaty. Consequently, they
are not exempted from the application of Article 101 (1) Treaty.
5.4.
Application of Article 101(1) of the Treaty
5.4.1.
Article 101(1) of the Treaty
(175)
Article 101(1) of the Treaty prohibits as incompatible with the internal market all
agreements between undertakings, decisions by associations of undertakings or
concerted practices which may affect trade between Member States and which have
as their object or effect the prevention, restriction or distortion of competition within
the internal market, and in particular those which directly or indirectly fix purchase
or selling prices or any other trading conditions, limit or control production and
markets, or share markets or sources of supply.
5.4.2.
The nature of the infringement
5.4.2.1. Agreements and concerted practices
Principles
(176)
Article 101(1) Treaty prohibits agreements between undertakings, decisions of
associations of undertakings and concerted practices.
(177)
An agreement can be said to exist when the parties adhere to a common plan which
limits or is likely to limit their individual commercial conduct by determining the
lines of their mutual action or abstention from action in the market. It does not have
to be made in writing; no formalities are necessary, and no contractual sanctions or
enforcement measures are required. The fact of agreement may be express or implicit
in the behaviour of the parties. Furthermore, it is not necessary, in order for there to
be an infringement of Article 101 of the Treaty, for the participants to have agreed in
advance upon a comprehensive common plan. The concept of agreement in Article
101(1) of the Treaty would apply to the inchoate understandings and partial and
conditional agreements in the bargaining process which lead up to the definitive
agreement.
(178)
In its judgment in the PVC II case256, the Court of First Instance stated that “it is well
established in the case law that for there to be an agreement within the meaning of
Article [101(1) of the Treaty] it is sufficient for the undertakings to have expressed
their joint intention to behave on the market in a certain way”.
(179)
Although Article 101(1) of the Treaty draws a distinction between the concept of
“concerted practices” and “agreements between undertakings”, the object is to bring
within the prohibition of those Articles a form of co-ordination between undertakings
by which, without having reached the stage where an agreement properly so-called
256
EN
Joined Cases T-305/94 etc. Limburgse Vinyl Maatschappij NV and others v Commission (PVC II),
[1999] ECR II-931, paragraph 715.
54
EN
has been concluded, they knowingly substitute practical co-operation between them
for the risks of competition257.
(180)
The criteria of co-ordination and co-operation laid down by the case law of the
Court, far from requiring the elaboration of an actual plan, must be understood in the
light of the concept inherent in the provisions of the Treaty relating to competition,
according to which each economic operator must determine independently the
commercial policy which it intends to adopt in the internal market. Although that
requirement of independence does not deprive undertakings of the right to adapt
themselves intelligently to the existing or anticipated conduct of their competitors, it
strictly precludes any direct or indirect contact between such operators the object or
effect of which is either to influence the conduct on the market of an actual or
potential competitor or to disclose to such a competitor the course of conduct which
they themselves have decided to adopt or contemplate adopting on the market258.
(181)
Thus, conduct may fall under Article 101(1) of the Treaty as a concerted practice
even where the parties have not explicitly subscribed to a common plan defining
their action in the market but knowingly adopt or adhere to collusive devices which
facilitate the co-ordination of their commercial behaviour 259 . Furthermore, the
process of negotiation and preparation culminating effectively in the adoption of an
overall plan to regulate the market may well also (depending on the circumstances)
be correctly characterised as a concerted practice.
(182)
Although in terms of Article 101(1) of the Treaty the concept of a concerted practice
requires not only concertation but also conduct on the market resulting from the
concertation and having a causal connection with it, it may be presumed, subject to
proof to the contrary, that undertakings taking part in such a concertation and
remaining active in the market will take account of the information exchanged with
competitors in determining their own conduct on the market, all the more so when
the concertation occurs on a regular basis and over a certain period. Such a concerted
practice is caught by Article 101(1) of the Treaty even in the absence of anticompetitive effects on the market260.
(183)
In the T-Mobile judgment, the Court of Justice held that "the number, frequency, and
form of meetings between competitors needed to concert their market conduct
depend on both the subject-matter of that concerted action and the particular market
conditions. If the undertakings concerned establish a cartel with a complex system of
concerted actions in relation to a multiplicity of aspects of their market conduct,
regular meetings over a long period may be necessary. If, on the other hand … the
objective of the exercise is only to concert action on a selective basis in relation to a
one-off alteration in market conduct with reference simply to one parameter of
competition, a single meeting between competitors may constitute a sufficient basis
on which to implement the anti-competitive object which the participating
undertakings aim to achieve" and that "in so far as the undertaking participating in
the concerted action remains active on the market in question, there is a presumption
of a causal connection between the concerted practice and the conduct of the
257
258
259
260
EN
Case 48/69, Imperial Chemical Industries v Commission [1972] ECR 619, paragraph 64.
Joined Cases 40-48/73 etc. Suiker Unie and others v Commission [1975] ECR 1663, paragraph 174.
See also Case T-7/89 Hercules v Commission [1991] ECR II-1711, paragraph 256.
See also Case C-199/92 P Hüls v Commission, [1999] ECR I-4287, paragraphs 158-166.
55
EN
undertaking on that market, even if the concerted action is the result of a meeting
held by the participating undertakings on a single occasion."261
(184)
Moreover, it is established case law that the exchange, between undertakings, in
pursuance of a cartel falling under Article 101 (1) of the Treaty, of information
concerning their respective deliveries, which not only covers deliveries already made
but is intended to facilitate constant monitoring of current deliveries in order to
ensure that the cartel is sufficiently effective, constitutes a concerted practice within
the meaning of that article262.
(185)
However, in the case of a complex infringement of a certain duration, it is not
necessary for the Commission to characterise the conduct as exclusively one or other
of those forms of illegal behaviour. The concepts of agreement and concerted
practice are fluid and may overlap. The anti-competitive behaviour may well be
varied from time to time, or its mechanisms adapted or strengthened to take account
of new developments. Indeed, it may not even be possible to make such a distinction,
as an infringement may present simultaneously the characteristics of each form of
prohibited conduct, while when considered in isolation some of its manifestations
could accurately be described as one rather than the other. It would, however, be
artificial analytically to sub-divide what is clearly a continuing common enterprise
having one and the same overall objective into several different forms of
infringement. A cartel may therefore be an agreement and a concerted practice at the
same time. Article 101 of the Treaty lays down no specific category for a complex
infringement of the present type263.
(186)
An agreement for the purposes of Article 101(1) of the Treaty does not require the
same certainty as would be necessary for the enforcement of a commercial contract
at civil law. Moreover, in the case of a complex cartel of long duration, the term
“agreement” can properly be applied not only to any overall plan or to the terms
expressly agreed but also to the implementation of what has been agreed on the basis
of the same mechanisms and in pursuance of the same common purpose. As the
Court of Justice has pointed out it follows from the express terms of Article 101(1) of
the Treaty that agreement may consist not only in an isolated act but also in a series
of acts or a course of conduct.264
Application in this case
(187)
261
262
263
264
EN
Chapter 4 shows that the addressees of this Decision were involved in collusive
activities concerning the banana business in the Southern European region, in
particular coordinating their price strategy regarding future prices, price levels, price
movements and/or price trends, and exchanging information on future market
conduct regarding prices.
The judgment of 4 June 2009 in Case C-8/08, T-Mobile Netherlands BV v Raad van bestuur van de
Nederlandse Mededingingsautoriteit, not yet reported, at paragraphs 60 et seq.
See, in this sense, Cases T-147/89, T-148/89 and T-151/89, Société Métallurgique de Normandie v
Commission, Trefilunion v Commission and Société des treillis et panneaux soudés v Commission,
respectively, paragraph 72.
See again Case T-7/89 Hercules v Commission, paragraph 264.
See Case C-49/92P Commission v Anic Partecipazioni SpA, [1999] ECR I-4125, paragraph 81.
56
EN
(188)
The facts described in Chapter 4 and the behaviour of Chiquita and Pacific referred
to in recital (187) clearly constitute an agreement within the meaning of Article
101(1) of the Treaty in the sense that the undertakings concerned explicitly agreed on
certain conduct on the market. Those activities present a form of coordination and
cooperation whereby the parties knowingly substituted practical cooperation between
them for the risks of competition. 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) of the Treaty.
(189)
The Commission has obtained documents from the Italian authorities, during the
inspections in November 2007 and in response to requests for information, which
show that the parties participated in those bilateral arrangements.
(190)
The documentary evidence together with the corporate statements of Chiquita in the
Commission file (see Chapter 4.2) show, contrary to what Pacific has alleged,265 that
the exchanges between Chiquita and Pacific went well beyond only sporadic, trivial
or cryptic "market trend indications". What was set up at the meeting of 28 July 2004
was actually a structured and regular price fixing arrangement for Portugal, Greece
and Italy.
(191)
Chapter 4 also shows that bilateral collusion took place over a period of time,
systematically (or at least regularly) and in a repetitive way. The bilateral
arrangements took place according to an established pattern, which was consistent
throughout the relevant time period, even though intensity and specific contents of
communications may have varied over time.
(192)
When undertakings, as in this case, are in direct contact with competitors, even if
they merely receive information concerning the future conduct of competitors, they
can be considered to have taken part in a concerted practice since the receiving
undertaking cannot have failed to take into account, directly or indirectly, the
information obtained in order to determine the policy which it intended to pursue on
the market266. On the basis of the above considerations, there are no indications that
the parties participating in concerting arrangements did not take account of the
information exchanged with competitors when determining their conduct on the
market.267 This is so despite variations in the frequency and specific contents of such
communications, since such conduct could be expected to influence pricing
behaviour even if the frequency and/or specific content of communications may have
varied over time. It follows from the evidence that the parties, through their collusive
contacts, engaged in action the obvious purpose of which was to influence their
respective conduct on the market regarding prices and to disclose to each other the
course of behaviour which each of the banana importers concerned itself
contemplated adopting on the market.
(193)
To reach its conclusion, the Commission does not exclusively rely on this established
case-law of the Courts. The facts described in Chapter 4 show that the parties at least
265
266
267
EN
See recital 155 and section 5.8 of Pacific’s reply to the Statement of Objections.
See Joined Cases T-202/98 etc. Tate & Lyle v Commission ECR [2001] II-2035, paragraph 58.
See Case C-49/92 P Commission v Anic Partecipazioni SpA, [1999] ECR I-4125, paragraph 121.
57
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partially took account of the price information exchanged and acted accordingly (see
in particular recitals (118), (124) and (129)-(130); see also, for example, the copy of
the e-mail of 11 April 2005 and the undated table which were copied during
inspections from a Pacific binder entitled “price forecasts”268).
(194)
Therefore, it is concluded that the bilateral arrangements between the parties
influenced the conduct of the parties in setting banana prices for Italy, Greece and
Portugal and that there was a causal connection between them. .
(195)
On the basis of these considerations, it is concluded that the infringement in this case
presents all the characteristics of an agreement and/or a concerted practice in the
sense of Article 101 of the Treaty.
Assessment of Pacific’s arguments
(196)
Pacific argues that none of the evidence relied on by the Commission makes it
possible to draw the firm conviction that Chiquita and Pacific expressed a joint
intention to fix prices in the market. According to Pacific the Commission failed to
take into account the clear and demonstrable objective of contacts between Mr [...]
and Mr [...] which concerned in its view legitimate business contacts related to
ANIPO, sourcing of bananas and co-shipping arrangements.269
(197)
The evidence described in Chapter 4 shows that, at the meeting on 28 July 2004, the
parties agreed on a price coordination scheme. Subsequent contacts between Chiquita
and Pacific show the existence of such coordination (see sections 4.2.4 and 4.2.5).
Those follow-up contacts also rule out Pacific’s alternative interpretations according
to which the action plan recorded in the contemporaneous hand-written notes of Mr
[...] merely reflects an arrangement to seek an agreement, an internal list of possible
ideas or a discussion about the possible supply of bananas by Pacific to Chiquita.
Furthermore, the mere fact that the cartel members also discussed other issues of a
legitimate nature does not preclude the existence of the anticompetitive discussions
about prices.
(198)
Pacific alleges that the contemporaneous notes of Mr [...] and the e-mail of 11 April
2005 were of a purely internal and/or personal nature and were not shared with or
reviewed by anyone. Pacific further submits that the notes are unclear, inconsistent
and fragmentary and were contradicted by Chiquita in its statements. 270 Those
allegations cannot be sustained in view of the high probative value of the evidence
concerned. It must be taken into account that the handwritten notes of Mr [...] and email of 11 April 2005 are of a contemporaneous nature and the source of the
information had direct knowledge of the matters reported. Furthermore, those
documents are corroborated by other facts and evidence, including Chiquita's
statements, as described in Chapter 4.
(199)
Pacific states that there is no evidence that the "Action Plan" which is mentioned in
the notes from the meeting of 28 July 2004 were agreed upon by Mr [...] of Chiquita
and Mr [...] of Pacific. Pacific claims that it is just as likely that the "Action Plan"
268
269
270
EN
ID 1986 (inspector's list).
Recitals 378 et seq of Pacific’s reply to the Statement of Objections.
Recitals 384 et seq and 178 et seq of Pacific’s reply to the Statement of Objections.
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was Mr [...]’s internal notes of what he thought he could or should do.271 Pacific
further claims that there was no agreement and no implementation of an agreement
relating to weekly contacts to hold price in Portugal. It also submits with regard to
Portugal and the notes taken around 11 August 2004 (see recital (125)) that the
Commission’s reference to "Chiquita -> [...], Portugal Stable" is undated and does
not prove that Mr [...] of Pacific had a telephone conversation with Mr [...] of
Chiquita and does not prove that an agreement had been reached on 28 July 2004.
Pacific further argues that when, in the following week, on 2 August 2004, Mr [...]
wrote in his notes that Pacific was forecasting a price decrease of 1 EUR to 8.75
EUR, this was in contradiction with any agreement to "hold" prices. 272 Regarding
Greek and Italian prices, Pacific argues that the information in Mr [...]'s notes on
equalling prices in those Member States is trivial and does not correspond to Pacific's
actual price situation (see recital (110)).
(200)
The Commission has not argued that the reference to "hold price" means that the
parties would attempt to hold prices for each week in relation to Portugal (as
suggested by Pacific in their response to the Statement of Objections) but that the
parties would give follow-up to the agreement of 28 July 2004, as set out in the
"Action Plan" regarding discussions on prices, and in particular on whether to stay
put, to go up or to go down starting from the following week. Exactly this is shown
by Mr [...]’s notes of 6 August 2004 and around 11 August 2004,273 as well as by the
e-mail of 11 April 2005. Regarding these arguments of Pacific and its argument that
the price difference between Greece and Italy continued, it suffices to observe that
the Commission is not required to show that an agreement regarding future pricing
behaviour was fully and successfully implemented.274
(201)
Irrespective of the plausibility of achieving exactly what they set out to do, the two
parties followed up on the agreement of 28 July 2004 as evidenced by the notes from
August 2004, the e-mail of 11 April 2005 and Chiquita's statements. Mr [...]’s
memorandum (see recital (118)) also confirms that Chiquita expected that its "actions
[...] from the top of the market" would be carried out in parallel with "the steering of
the market from the 'bottom' by Bonita", that is to say, in line with what was set out
at the meeting of 28 July 2004.275 Accordingly, the body of evidence relied on in this
271
272
273
274
275
EN
Section 5.2.5 of Pacific’s reply to the Statement of Objections.
Recitals 197-198, 240 of Pacific’s reply to the Statement of Objections.
The fact that such a note is undated is quite normal since it is a note taken during a conversation over
the telephone and the anti-competitive object of the note was a reason for its author to leave the least
trace possible, see Case T-11/89 Shell / Commission [1992] ECR II-757, at paragraph 86.
The responsibility of a given undertaking in respect of an infringement of Article 101(1) of the Treaty is
properly established where it participated in the contacts, even if it did not subsequently implement any
measure or measures agreed at the contacts (see to this effect, for example, Joined Cases C-238/99 P, C244/99 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 509; Joined Cases C-189/02 P,
C-202/02 P, C-205/02 P to C-208/02 P and C213/02 P Dansk Rørindustri and Others v Commission
[2005] ECR I-5425, paragraph 145).
As indicated in recital (119), the memorandum shows that Chiquita expected a coordinated action by
Chiquita and Pacific in the preceding period and was disappointed by results. This does not indicate, as
suggested by Pacific, that no agreement existed. It rather shows that an agreement existed and, despite
that agreement, Pacific had not completely fulfilled what it set out to do, with the consequence that
Chiquita was disappointed with the fact that the envisaged results had not been fully achieved. The
Commission has never asserted that the memorandum is direct evidence of an agreement between
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Decision shows that Chiquita and Pacific reached an agreement which was then
implemented.
(202)
The evidence in the file considered as a whole represents compelling proof that the
parties reached an agreement on certain conduct on the market with a common
objective to restrict competition. Chiquita and Pacific knowingly substituted practical
cooperation between them for the risks of competition. Even if it should eventually
not be 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) of the Treaty. By
exchanging their price intentions, Chiquita and Pacific eliminated or, at the very
least, substantially reduced uncertainty as to the conduct to expect of the other on the
market.
(203)
Pacific submits 276 that the Commission has failed to satisfy the level of proof
required to support its objections against Pacific. According to the case-law, in order
to establish that there has been an infringement of Article 101(1) Treaty, the
Commission must produce precise and consistent evidence. However, it is not
necessary for every item of evidence produced by the Commission to satisfy those
criteria in relation to every aspect of the infringement. It is sufficient if the body of
evidence relied on by that institution, viewed as a whole, meets that requirement.
Thus, even if, as Pacific asserts, none of the different elements of the infringement in
question, considered separately, constituted an agreement or concerted practice
prohibited by Article 101(1) Treaty, such a conclusion would not prevent those
elements, considered together, from constituting such an agreement or practice.277 It
is normal, in the context of anti-competitive practices and agreements, for the
activities to take place in a clandestine fashion, for meetings to be held in secret, and
for the associated documentation to be reduced to a minimum. It follows that, even if
the Commission discovers evidence explicitly showing unlawful contact between
traders, it will normally be only fragmentary and sparse, so that it is often necessary
to reconstitute certain details by deduction. 278
5.4.2.2. Single and continuous infringement
Principles
(204)
276
277
278
279
EN
A complex cartel may properly be viewed as a single and continuous infringement
for the time frame in which it existed. The Court of First Instance points out, inter
alia, in the Cement cartel case that the concept of ‘single agreement’ or ‘single
infringement’ presupposes a complex of practices adopted by various parties in
pursuit of a single anti-competitive economic aim.279 The agreement may well be
Chiquita and Pacific. The memorandum is used to clarify whether Mr [...]’s notes of 28 July 2004 are
credible, a conclusion which it clearly supports.
See section 7.2 of Pacific’s reply to the Statement of Objections.
Case C-407/08 P Knauf Gips/Commission, not yet reported, at paragraphs 47-48.
Case T-53/03 BPB/Commission, [2008] ECR p. II-1333, at paragraphs 61-64, with further references.
See also Joined Cases C-204/00 P etc Aalborg Portland and others/Commission, [2004] ECR p. I-123,
at paragraphs 55-57. See also Case C-407/08 P Knauf Gips/Commission, not yet reported, at paragraph
49.
Joined Cases T-25/95 and others, Cement, ECR [2000] II-491, paragraph 3699.
60
EN
varied from time to time, or its mechanisms adapted or strengthened to take account
of new developments. The validity of that assessment is not affected by the
possibility that one or more elements of a series of actions or of a continuous course
of conduct could individually and in themselves constitute a violation of Article 101
of the Treaty.
(205)
It would be artificial to split up such continuous conduct, characterised by a single
purpose, by treating it as consisting of several separate infringements, when what
was involved was a single infringement which progressively would manifest itself in
both agreements and concerted practices.
(206)
Although a cartel is a joint enterprise, each participant in the arrangement may play
its own particular role. One or more may exercise a dominant role as ringleader(s).
Internal conflicts and rivalries, or even cheating may even occur, but will not,
however, prevent the arrangement from constituting an agreement or concerted
practice for the purposes of Article 101 of the Treaty where there is a single common
and continuing objective.
(207)
The mere fact that each participant in a cartel may play the role which is appropriate
to its own specific circumstances does not exclude its responsibility for the
infringement as a whole, including acts committed by other participants but which
share the same unlawful purpose. An undertaking which takes part in the common
unlawful enterprise by actions which contribute to the realisation of the shared
objective is equally responsible, for the whole period of its adherence to the common
scheme, for the acts of the other participants pursuant to the same infringement. This
is certainly the case where it is established that the undertaking in question was
aware of the unlawful behaviour of the other participants or could have reasonably
foreseen or been aware of them and was prepared to take the risk280.
(208)
In fact, as the Court of Justice stated in its judgment in Commission v Anic
Partecipazioni 281 , the agreements and concerted practices referred to in Article
101(1) of the Treaty necessarily result from collaboration by several undertakings,
who are all co-perpetrators of the infringement but whose participation can take
different forms according, in particular, to the characteristics of the market concerned
and the position of each undertaking on that market, the aims pursued and the means
of implementation chosen or envisaged. It follows, as recently reiterated by the Court
in the Cement cases, that an infringement of Article 101 of the Treaty may result not
only from an isolated act but also from a series of acts or from continuous conduct.
That interpretation cannot be challenged on the ground that one or several elements
of that series of acts or continuous conduct could also constitute in themselves and
taken in isolation an infringement of Article 101 of the Treaty. When the different
actions form part of an ‘overall plan’, because their identical object distorts
competition within the internal market, the Commission is entitled to impute
responsibility for those actions on the basis of participation in the infringement
considered as a whole.282
280
281
282
EN
See Case C-49/92 P Commission v Anic Partecipazioni, at paragraph 83.
Case C-49/92 Commission v Anic Partecipazioni, at paragraph 79.
See Joint cases C-204/00 P and others, Aalborg Portland et al., [2004] ECR, p. I-123, paragraph 258.
See also Case C-49/92 P, Commission v Anic Partecipazioni, paragraphs 78-81, 83-85 and 203.
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EN
Application in this case
(209)
In this case, the conduct in question constitutes a single and continuous infringement
of Article 101 of the Treaty.
(210)
While there are indications (see recitals (91) and (92)) that collusive arrangements
occurred among undertakings active in the banana business - including the parties –
from the year 2000, there is a consistent body of evidence to establish the collusive
arrangements as of 28 July 2004.
(211)
The evidence referred to in Chapter 4 shows the existence of a single and continuous
infringement between Pacific and Chiquita in relation to the banana business in the
Southern European region. The parties expressed their joint intention to behave on
the market in a certain way and adhered to a common plan to limit their individual
commercial conduct in the banana business. The agreement to enter into that plan
with a view to restricting competition can be dated back to at least 28 July 2004. The
collusion was in pursuit of a single anti-competitive economic aim, namely to
prevent competition on price by coordinating their price strategy regarding future
prices, price levels, price movements and/or price trends and exchanging information
thereon.
(212)
The agreements and/or concerted practices found to exist form 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 parameter. It would be artificial to split up such continuous
conduct, characterised by a single purpose, by treating it as consisting of several
separate infringements, when what was involved was a single infringement which
progressively would manifest itself in both agreements and concerted practices.283
(213)
The plan, which was subscribed to by Chiquita and Pacific, was developed and
implemented through a complex of collusive arrangements, specific agreements
and/or concerted practices. Given the common design and common objective of
eliminating competition in the banana business, the collusive arrangements described
in Chapter 4 have as their object the restriction of competition within the meaning of
Article 101(1) of the Treaty. That description is supported by clear evidence,
systematically referred to throughout this Decision. Taking into account these
considerations, it is concluded that the arrangements formed a single and continuous
infringement.
283
EN
Pacific argues in very generic terms that the Statement of Objections did not properly characterise how
the conduct under investigation would be considered as relating to a single and continuous infringement
(Section 7.5 of Pacific’s reply to the Statement of Objections.) Contrary to this view, the Statement of
Objections did contain the essential elements used against Pacific on which the Commission imposes a
penalty for an infringement of the competition rules, such as the facts, the characterisation of those facts
and the evidence on which the Commission relies, so that Pacific was in a position to submit its
arguments effectively in the administrative procedure brought against it (see Joined Cases C-322/07 P,
C-327/07 P and C-338/07 P Papierfabrik August Koehler AG and others v Commission, ECR [2009] p.
I-7191, at paragraph 36 with further references).
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EN
Assessment of Pacific’s arguments
(214)
Pacific alleges284 that the Commission does not describe any specific conduct which
spans across the period of the alleged infringement and has failed to demonstrate that
the conduct described in Chapter 4 formed a single and continuous infringement.
Pacific argues that the Commission has failed to describe any links between the
documentary evidence of July/August 2004 and the documentary evidence of April
2005 and, while the Commission describes the conduct as a single and continuous
infringement, it remains silent on the absence of evidence for the period between
July/August 2004 and April 2005 (namely for a period of seven months). Pacific
argues that that gap is especially long in view of the fact that, in the banana business,
prices are negotiated on a weekly basis (that is to say, there is no evidence for more
than 30 negotiation cycles).
(215)
Those arguments by Pacific are unsustainable and cannot be accepted. The finding
that Pacific and Chiquita engaged in the coordination of prices and exchanges of
information on future market conduct regarding prices is based on contemporaneous
documents and Chiquita's corporate statements (see section 4).
(216)
The starting point of the infringement is the meeting between Pacific and Chiquita on
28 July 2004, the collusive character of which is evidenced by the hand-written notes
drawn up by Mr [...] of Pacific (see section 4.2.3). The nature of the collusive scheme
that was set up during that meeting (namely a structured and regular price fixing
scheme covering Greece, Italy and Portugal) and which emerges from Mr [...]'s handwritten notes, is also consistent with the conduct described by Chiquita in its
corporate statements (see recital (100)).
(217)
The contemporaneous evidence in the file shows that, following the meeting of 28
July 2004, Chiquita and Pacific continued their collusive contacts, with a first contact
taking place on 6 August 2004 and another contact shortly after 11 August 2004 (see
section 4.2.4). During those contacts between Mr [...] of Pacific and Mr [...] and Mr
[...] of Chiquita, the parties discussed prices in Greece and market development in
Portugal respectively285. The nature and substance of these contacts are consistent
with Chiquita's corporate statements (see recitals (100)-(101)), namely that in the
period following the meeting of 28 July 2004 Mr [...] of Chiquita and Mr [...] of
Pacific started calling each other and discussed, inter alia, general market trends and
specific price trends and intentions for the following week. According to Chiquita,
calls between Mr [...] of Chiquita and Mr [...] of Pacific became more frequent
towards the end of 2004 and the beginning of 2005. Chiquita reiterated during the
Oral Hearing that such communications between Mr [...] of Pacific and Mr [...] of
Chiquita took place during the period from 28 July 2004 until 8 April 2005. Those
communications concerned forthcoming market developments or likely price
developments.286
284
285
286
EN
Sections 5.4 and 7.3. of Pacific’s reply to the Statement of Objections.
ID 1983, p. 15 (document obtained from GdF, allegato 15).
See part 4 of the recording of the Oral Hearing, from 00:01:30 to 00:02:15, on part 4 of the recording of
the Oral Hearing, from 00:45:30 to 00:46:00 Mr [...] of Chiquita reiterates that occasionally he and Mr
[...] of Pacific touched base on market trends at the end of phone calls. Regarding further statements by
Chiquita during the Hearing, see sections (...).
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EN
(218)
The continuation of the regular bilateral contacts in which Pacific and Chiquita
coordinated prices is further confirmed by the internal Pacific e-mail of 11 April
2005287 and the undated table entitled "Chiquita Prices – 2005" (see section 4.2.5)
which together show the almost weekly occurrence of such contacts between Mr [...]
of Pacific and Mr [...] of Chiquita in the period between February and April 2005
(weeks 6/2005 to 15/2005). In particular, the undated excel table entitled "Chiquita
Prices – 2005", indicates that Mr [...] of Pacific updated a table containing Chiquita's
prices on a weekly basis and wrote down notes of the content of his discussions with
Mr [...] of Chiquita upon them agreeing on the weekly prices for green bananas in
Greece, Portugal and Italy.
(219)
Contrary to Pacific's arguments, the body of evidence relied upon does not allow for
the conclusion that there is a gap of 7 months in the evidence, but instead, when
considering the body of evidence as a whole, it is established that the collusive
conduct which is evidenced by the e-mail of 11 April 2005 and the undated table
entitled "Chiquita Prices – 2005" constitutes a continuation of the price coordination
scheme as set up at the meeting of 28 July 2004. This is also confirmed by Chiquita,
which submits that in the period from 28 July 2004 until 8 April 2005 (the date of its
application under the Leniency Notice) it engaged in an infringement comprising of
occasional illicit contacts with Pacific in relation to the exchange of each party's
individual "price trend data" for the following week.288
(220)
In its attempt to show the absence of any contacts showing coordination between
Pacific and Chiquita in the period from August 2004 to April 2005, Pacific refers to
the following documents:289
287
288
289
290
291
EN
(a)
A set of four internal Pacific e-mails dated 19 August 2004, 8 December 2004,
14 June 2005 and 5 October 2006290 which in Pacific’s view illustrate that it
used figures from a the periodical Sopisco and average selling prices in Europe
for the internal estimation of its competitors’ prices and that Pacific did not
have any direct sources of price information of competitors. However, Pacific
draws excessively far-reaching conclusions from those documents. The fact
that Mr [...] and Mr [...] of Pacific exchanged e-mails containing pricing
information originating from legitimate sources such as Sopisco News or
public press releases made by Chiquita does not in any way rule out the
possibility of the existence of collusive contacts during the same period of
time, which are evidenced in documents originating from Pacific and
confirmed by Chiquita's statements. Also, the statement in the e-mail of 8
December 2004, according to which Pacific has no other independent
verification of their price setting than Sopisco, cannot lead to the conclusion
that Pacific did not have any direct sources of price information of competitors.
(b)
A set of three internal Pacific e-mails dated 11 and 18 October 2004 and 29
November 2004 which, according to Pacific, refer to competition from
Chiquita in the Greek market during the second half of 2004.291 The e-mails of
Pacific inspection document DWY 12, ID 1860, p. 2.
Chiquita statement during the Oral Hearing on 18 June 2010; [...]
Section 5.4 of Pacific’s reply to the SO.
Annexes of its reply of 17 September 2008 to a request for information, ID 1862 and ID 1863.
Annexes 2-4 and recital 244 of Pacific’s reply to the Statement of Objections.
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EN
11 and 18 October 2004 do not, however, contain any reference to price
competition in Greece, whereas the e-mail of 29 November 2004 simply
mentions that Chiquita was holding down prices in that market in order to use
additional licences in the 4th quarter of that year, but that the policy had
changed. None of the e-mails support Pacific’s arguments that there was tough
price competition between Chiquita and Pacific in Greece at that time.
(221)
It follows that the bilateral collusion between Chiquita and Pacific occurred regularly
and in a repetitive way over a period of time. The bilateral arrangements took place
according to an established pattern which was consistent over the relevant time
period, even though the intensity and specific contents of communications may have
varied over time. Various bilateral contacts between the parties which occurred at
and after the meeting of 28 July 2004 served to coordinate the parties' conduct on the
market and to exchange commercially sensitive information. All those actions
formed part of an overall plan as they were carried out in pursuit of a single and
common anti-competitive objective, 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 parameter.
5.4.3.
Restriction of competition
(222)
The anti-competitive behaviour in this case had the object of restricting competition
in the Union, namely in Italy, Greece and Portugal which are a substantial part of the
internal market.
(223)
Article 101(1) of the Treaty expressly includes as restrictive of competition
agreements and concerted practices which292:
(224)
292
293
294
295
EN
(a)
directly or indirectly fix selling prices or any other trading conditions;
(b)
limit or control production, markets or technical development;
(c)
share markets or sources of supply.
It is settled case-law that, for the purpose of application of Article 101(1) of the
Treaty, there is no need to take into account the actual effects of an agreement when
it has as its object the prevention, restriction or distortion of competition within the
common market293. The mere fact of making an agreement whose object is to restrict
competition in breach of Article 101(1) of the Treaty in itself constitutes a failure to
comply with those provisions, irrespective of whether that agreement was actually
implemented294. Concerted practices are also prohibited under Article 101(1) of the
Treaty, regardless of their effect, when they have an anti-competitive object 295 .
Consequently, it is not necessary to show actual anti-competitive effects where the
anti-competitive object of the conduct in question is established.
The list is not exhaustive.
Case T-62/98 Volkswagen AG v Commission [2000] ECR II-2707, paragraph 178.
Case T-241/01 SAS v Commission [2005] ECR II-2917, paragraph 186.
Case C-199/92 P Hüls v Commission [1999] ECR I-4287, paragraphs 157-168.
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(225)
It is established case law that the implementation of agreements on target prices and
other commercial terms does not necessarily require that those exact prices and
conditions be applied. In line with the General Court's judgement in ADM296, when
there is an agreement relating to price objectives rather than to fixed prices, "it is
clear that implementation of that agreement simply meant that the parties would
endeavour to achieve those objectives.”
(226)
The conduct of the parties in this case fulfils the general characteristics of horizontal
arrangements in the meaning of Article 101(1) of the Treaty. Price being the main
instrument of competition, the collusive arrangements and mechanisms adopted by
the parties were all ultimately aimed at inflating prices to their benefit. The parties
explicitly coordinated price movements. Price fixing by its very nature restricts
competition within the meaning of Article 101(1) of the Treaty.297
(227)
Contrary to what Pacific alleges, the conduct in question cannot be qualified as freestanding information exchange. 298 Whilst it is true that Chiquita and Pacific
exchanged sensitive market information, such exchanges formed an integral part of
the overall horizontal arrangement which has as its object the restriction of
competition. In addition, the exchange of information regarding prices allowed each
of the parties to take due account of the contemplated behaviour of the other party
vis-à-vis specific markets. The mere fact of obtaining information that an
independent operator keeps strictly secret as confidential business information is
sufficient to demonstrate that the parties had an anti-competitive intention299.
(228)
Having regard to the degree of flexibility which prevailed on the market despite the
existence of the licensing regime as described in section 2.3.3, the comparisons of
price information reduced uncertainty about the parties' market strategies and
enabled the parties to adjust their own behaviour and influence each others' conduct.
In so far as the characterisation of certain behaviour as a concerted practice requires
subsequent conduct on the market following the exchanges of information, it can be
presumed that the undertakings which take part in such concerting and which remain
active on the market take account of the information exchanged with competitors in
determining their own conduct on the market.
(229)
According to Pacific the statements by Chiquita indicating that, on occasion, views
on general trends in the market were discussed between the parties and that Mr [...]
of Chiquita might, in that context, have described the market with expressions such
296
297
298
299
EN
Case T-224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003]
ECR II-2597, paragraph 160.
Pacific argues in very generic terms that the Statement of Objections did not properly characterise the
alleged conduct (Section 7.5 of Pacific’s reply to the Statement of Objections.) Contrary to this view,
the Statement of Objections did contain the essential elements used against Pacific on which the
Commission imposes a penalty for an infringement of the competition rules, such as the facts, the
characterisation of those facts and the evidence on which the Commission relies, so that Pacific was in a
position to submit its arguments effectively in the administrative procedure brought against it (see
Joined Cases C-322/07 P, C-327/07 P and C-338/07 P Papierfabrik August Koehler AG and others v
Commission, ECR [2009] p. I-7191, at paragraph 36 with further references).
Sections 7.2.4 and 7.2.5 of Pacific’s reply to the SO.
See to that effect Case T-3/89 Atochem v Commission [1991] ECR II-1180, paragraph 54, and Case T12/89 Solvay v Commission [1992] ECR II-907, paragraph 100.
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as “soft” and “no reason for me to change” do not amount to an illegal agreement
covering price fixing.300
(230)
The cartel, however, has to be considered as a whole and in the light of the overall
circumstances. The principal aspects of the complex of agreements and/or concerted
practices which can be characterised as restrictions of competition are the fixing of
prices by coordination of the parties' price strategy regarding future prices, price
levels, price movements and/or price trends (see section 4.2, for example recitals
(99)-(101), (105)-(109), (111) and (124)-(131)).
(231)
Those agreements and/or concerted practices have as their object the restriction of
competition within the meaning of Article 101(1) of the Treaty. They are described
in detail in the Chapter 4.
(232)
Regarding the anti-competitive object of the exchanges of confidential information
and the other contacts with an anticompetitive purpose identified, for example, in
recitals (99)-(101), (105)-(109), (111), (123)-(125) and (127)-(130), the arrangement
has to be seen in its context and in the light of all the circumstances. Those contacts
served to attain a single and common anti-competitive objective, 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 parameter, and further enabled the
undertakings to adapt their commercial strategy by taking into account the
information received from a competitor.
(233)
Chiquita and Pacific reached an agreement on 28 July 2004 which they subsequently
implemented. Further evidence on the file (see section 4.2) clearly shows that the
infringement had an impact in the Southern European region. This is evidenced by
the following examples:
300
EN
–
The implementation of the cartel arrangements was ensured through contacts
between the representatives of the parties. Such contacts are evidenced by Mr
[...]’s notes of August 2004, the e-mail of 11 April 2005 and the undated table
found together with the print-out of that e-mail.
–
The copy of the e-mail of 11 April 2005 and the undated table (see section
4.2.5) were copied during inspections at the premises of Pacific from a binder
entitled “price forecasts” in Mr [...]’s office (see recital (193)) which shows
that the information reported in those documents was used in Pacific’s internal
decision making on prices. The documents also evidence regular internal
reporting to Pacific's European Headquarters.
–
The e-mail of 11 April 2005 shows that the parties’ discussions were in line
with the collusive arrangement which was set up by Chiquita and Pacific at the
meeting of 28 July 2004 whereby the parties would collude on prices.
–
Mr [...]’s notes regarding the meeting of 28 July 2004 refer to, amongst other
things, measures to help Pacific to “push prices” (see recital (111)). The
memorandum of Mr [...] of Chiquita (see recital (118)) confirmed such "actions
of Chiquita from the top of the market".
Recital 300 of Pacific’s reply to the Statement of Objections.
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EN
–
(234)
The fact that an agreement having an anti-competitive object is implemented, even if
only in part, is sufficient to preclude the possibility that the agreement had no effect
on the market. 301 Accordingly, whilst the competition-restricting object of the
arrangements is sufficient to support the conclusion that Article 101(1) of the Treaty
applies and it is not necessary to show actual anti-competitive effects where the anticompetitive object of the conduct in question is proved302, the competition-restricting
effects of those arrangements have nonetheless also been established and lead to the
same conclusion.
5.4.4.
Effect upon trade between Members States
(235)
The continuing agreement between the producers had an appreciable effect upon
trade between Member States.
(236)
Article 101(1) of the Treaty is aimed at agreements which might harm the attainment
of a single market between the Member States, whether by partitioning national
markets or by affecting the structure of competition within the internal market.
(237)
The Court of Justice and the General Court have consistently held that, "in order that
an agreement between undertakings may affect trade between Member States, it must
be possible to foresee with a sufficient degree of probability on the basis of a set of
objective factors of law or fact that it may have an influence, direct or indirect,
actual or potential, on the pattern of trade between Member States".303 In any event,
whilst Article 101 of the Treaty "does not require that agreements referred to in that
provision have actually affected trade between Member States, it does require that it
be established that the agreements are capable of having that effect"304.
(238)
As demonstrated in the "Description of the Industry" and “Trade Between Member
States” section in Chapter 2, the market for bananas in the Southern European region
is characterised by a substantial volume of trade between Member States.
(239)
The application of Article 101 of the Treaty to a cartel is not, however, limited to that
part of the members’ sales that actually involve the transfer of goods from one
Member State to another. Nor is it necessary, in order for these provisions to apply,
to show that the individual conduct of each participant, as opposed to the cartel as a
whole, affected trade between Member States305.
301
302
303
304
305
EN
Mr [...]’s notes on a contact with Chiquita in August 2004 (see recitals (122)(124)) show price discussions which are in line with the collusive arrangement
which was set up by Chiquita and Pacific at the meeting of 28 July 2004
whereby the parties would collude on prices (see recitals (106) and (109)).
Case T-38/02, Groupe Danone v Commission [2005] ECR II-4407, paragraph 148.
Case T-62/98 Volkswagen AG vs Commission [2000] ECR II-2707, paragraph 178.
See Case 56/65 Société Technique Minière [1966] ECR 282, paragraph 7; Case 42/84 Remia and Others
[1985] ECR 2545, paragraph 22 and Joined Cases T-25/95 and others, Cimenteries CBR [2002] ECR II491, at paragraph 1986.
Case C-306/96 Javico, [1998] ECR I-1983, paragraphs 16 and 17; see also Case T-374/94, European
Night Services, [1998] ECR II-3141, paragraph 103.
See Case T-13/89 Imperial Chemical Industries v Commission [1992] ECR II-1021, paragraph 304.
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(240)
Pacific denies that there has been any requisite effect on trade between Member
States either.306
(241)
Contrary to Pacific's argument, the cartel arrangements described in Chapter 4 and
involving Pacific and Chiquita covered Italy, Greece and Portugal, which form a
significant part of the Union. The existence of those collusive arrangements must
have resulted, or was likely to result, in the diversion of trade patterns from the
course they would otherwise have followed307.
(242)
Insofar as the activities of the cartel related to sales in third countries, they lie outside
the scope of this Decision.
5.5.
Procedural arguments of the parties
(243)
Throughout the administrative proceedings, the parties put forward numerous
procedural arguments which have been dealt with by the Commission. Nevertheless,
the parties have maintained certain of their claims in their replies to the Statement of
Objections and/or thereafter.
5.5.1.
Claims relating to the Commission’s investigation
(244)
Both parties question308 the legitimacy of the Guardia di Finanza’s transmission to
the Commission of copies of the national inspection documents which were seized in
a tax investigation. 309 Chiquita argues that the transmission appears illegal under
Italian law. Pacific claims (i) that the Commission would only have been entitled to
receive those documents under Article 12 of Regulation (EC) No 1/2003 from a
national competition authority, in Italy the Autorità Garante della Concorrenza e del
Mercato (‘AGCM’), (ii) that the information could not be used in evidence as it was
not collected in the context of a procedure to establish an infringement of Union
competition law and (iii) that the authorisation of the Procuratore della Repubblica310
does not guarantee the adherence to procedural safeguards established at European
Union level.
(245)
Article 12 of Regulation (EC) No 1/2003 does not restrict the Commission's ability to
legally receive documents from different sources. That provision deals with the
exchange of information within the European Competition Network for case
allocation purposes and is simply one of the avenues for the Commission to obtain
information.311
(246)
As regards the admissibility of the national inspection documents as evidence, the
lawfulness of the transmission to the Commission by a national prosecutor or the
306
307
308
309
310
311
EN
Pacific's reply to the SO, p. 103
See Joined Cases 209 to 215 and 218/78 Van Landewyck and others v Commission [1980] ECR 3125,
paragraph 170.
Recitals 29-32 and 238-240 of Chiquita’s reply to the Statement of Objections and annex B to the reply;
section 8.2. of Pacific’s reply to the Statement of Objections.
See recital (81).
See recital (81).
Contrary to Pacific’s claim, the fact that the Guardia di Finanza may also have shown or transmitted the
national inspection documents to the AGCM does not bring the Guardia di Finanza’s transmission of
the documents to the Commission within the ambit of Article 12.
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authorities competent in competition matters of information obtained in application
of national criminal law is a question governed by national law. In order to consider
a document to be inadmissible evidence, the transmission of that document must be
declared unlawful by a national court.312 No convincing elements have been brought
to the Commission’s attention that would indicate the unlawfulness of the
transmission of the inspection documents received from the Guardia di Finanza.313
On the contrary, the Procuratore della Repubblica of Rome has authorised the use of
the national inspection documents for administrative purposes and declared that the
communication of those documents by the Commission to the parties was not
prejudicial to the national investigation in Italy.314 The parties were given access to
those authorisations. Therefore, there is no basis for the claim that the national
inspection documents or information obtained on their basis should not be used in
evidence.
(247)
Pacific315 also argues that the Commission sought to steer the immunity applicant (i)
by putting undue pressure on Chiquita to provide it with information supporting the
Commission’s case at the time of the inspections and (ii) by providing Chiquita with
a copy of the e-mail of 11 April 2005 already during the inspections in November
2007, when the e-mail did not yet form part of the file, and, again, after the state of
play letter to Chiquita.
(248)
Contrary to Pacific’s allegation, no pressure has been exerted on Chiquita. Chiquita
was merely asked to comply with its duty to cooperate under the Leniency Notice.
The fact that Chiquita was informed orally on 26 November 2007 that Commission
officials would carry out an inspection at the premises of Chiquita in Rome and that
Mr [...]’s presence was requested (see recital (82)) cannot be regarded as steering the
applicant. Regarding the access to the e-mail of 11 April 2005, it is noted that during
the inspections in November 2007, the interviewing Commission officials simply
referred to the fact that Chiquita could find a document which indicated collusive
contacts around 11 April 2005 in the file in Case 39188-Bananas.316 At that point in
312
313
314
315
316
EN
See Case C-407/04 P Dalmine / Commission [2007] ECR p. I-829, at paragraphs 62-63. The judgment
in Case 85/87 Dow Benelux / Commission [1989] ECR p. 3137, at paragraph 17, to which Pacific refers
in its reply to the Statement of Objections, does not lead to a different conclusion as it concerns a case
in which the Commission relied on information obtained during earlier investigations having a different
subject-matter in order to open a new inquiry concerning infringements of the competition rules, not
information obtained from a third party.
In annex B to its reply to the Statement of Objections, Chiquita puts forward legal explanations
according to which a transmission of the national inspection documents would not be permissible under
Italian law. These explanations are, however, not convincing and it remains that neither the Italian
public prosecutor nor the Guardia di Finanza saw any objection to such a transmission. The
Commission has explicitly informed Chiquita that a request regarding the lawfulness of the
transmission of the national inspection documents to the Commission should be addressed to the
competent Italian court.
See recital (81).
Section 8.1. of Pacific’s reply to the Statement of Objections.
At that point in time, that document had already been accessible to the addressees of the Statement of
Objections in Case 39188. According to the case-law, the Commission may obtain leads from other
investigations. It follows from the judgment in Case 85/87 Dow Benelux / Commission ([1989] ECR p.
3137) that in cases where the Commission has discovered materials in one investigation about a
different infringement it cannot use the information in evidence in that second case, but it cannot be
prevented from using the information to commence a new and separate investigation. Article 28(1) of
Regulation (EC) No 1/2003 should not be construed as meaning that the Commission is barred from
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time, no copy of the e-mail of 11 April 2005 was handed over to Chiquita. 317
Chiquita was, however, provided with a copy of that e-mail after the state of play
letter was sent in order to give it the opportunity to express its views on the state of
play letter, mainly in the context of a possible continuation of the infringement after
its leniency application. This cannot be qualified as steering the immunity applicant.
(249)
After the Oral Hearing, Pacific requested that Mr [...] should be formally interviewed
again to further explore his views on the facts in the Statement of Objections.318 As
reasons for its request it argues that the minutes of Mr [...]’s interview during the
inspections may not be sufficiently clear and precise and may not reflect what Mr
[...] said after he had allegedly been instructed to be more forthcoming. As additional
reasons, Pacific submits that Chiquita had explained during the Oral Hearing that it
had offered such interviews following the Statement of Objections, but that offer was
not taken up by the Commission even though, during the Oral Hearing, Chiquita did
not take any stance on the case regarding the period before the date of its leniency
application.
(250)
There are no elements to support the claim that a further interview with Mr [...] is
necessary. Mr [...] was interviewed during the inspections in November 2007 by the
Commission under Chiquita’s leniency cooperation. His declarations are particularly
credible since he only became aware that the Commission was carrying out an
investigation in the Southern European banana business at that time. Chiquita has
reviewed and approved the interview record.319 The account given in that interview is
consistent with subsequent submissions of Chiquita (see recitals (97)-(101)) which
were based to a great extent on its own interviews with Mr [...]. Chiquita has also
provided its account of the events covered by this Decision several times. The
Commission’s investigations are directed against undertakings and not against its
employees.320 Therefore, it is the respective undertaking’s duty to present its views
about the conduct under investigation. Chiquita has confirmed during the Oral
317
318
319
320
EN
initiating an inquiry in order to verify or supplement information which it happened to obtain during a
previous investigation if that information indicates the existence of the conduct contrary to the
competition rules. Such a bar would go beyond what is necessary to protect professional secrecy and the
rights of defence and would thus constitute unjustified hindrance to the performance by the
Commission of its task of ensuring compliance with the competition rules and enforcement of Article
101 of the Treaty. See also Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250252/99 P Limburgse Vinyl Maatschappij and others / Commission, [2002] ECR p. I-8735, at paragraphs
297-308.
This has also been confirmed by Chiquita during the Oral Hearing, see part 2 of the recording of the
Oral Hearing, from 00:36:15 to 00:37:00.
Pacific’s letter of 7 September 2010.
Regarding Pacific’s comments about the length and the content of the minutes of the interview with Mr
[...] during the inspections, it is noted that, as interviews under Article 19 of Regulation (EC) No 1/2003
are given on a voluntary basis, it can be necessary to invoke, if an undertaking has applied for leniency,
its best efforts under its duty of cooperation under the Leniency Notice to ensure that its employees
divulge their knowledge about a cartel. In the case of Mr [...]’s interview during the inspections,
Chiquita was asked after first clearly inaccurate statements by the interviewee to ensure that subsequent
statements could be open and transparent and informed that it was not acceptable to limit statements to
confirming the elements that the Commission would put forward. The account of the interview was
edited by Chiquita and signed by Mr [...].
See Case T-9/99 HFB Holding and others / Commission [1999] ECR p. II-2429, at paragraphs 382 et
seq.
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Hearing321 that there are no new elements to the Commission’s case that Mr [...]
could report as he has reported all he can in terms of the infringement. Under those
circumstances, an additional interview with Mr [...] is not required. The rights of the
defence do not require the Commission to hear witnesses put forward by the parties
concerned, where it considers that the investigation of the case has been sufficient.322
(251)
While an additional interview with Mr [...] is not necessary, there are elements which
may have affected the willingness of Chiquita’s managers, including Mr [...], to be
more forthcoming in providing evidence, during the course of the proceedings, of
their collusive competitor contacts. By e-mail of 17 April 2005, Chiquita warned its
staff members (including Mr [...]) that it would consider taking disciplinary action
against any staff member that failed to report, within 48 hours, all anti-competitive
contacts with competitors that they may have been involved in. The short deadline
given and the threat of disciplinary action is likely to have discouraged Mr [...] from
pro-actively providing evidence of his contacts with Pacific in the period from July
2004 to April 2005. Pacific has been given access to the e-mail of 17 April 2005323 as
well as Chiquita's explanations to that effect in its reply to the state of play letter,
without however, providing any observations on the matter. Pacific did also not ask
any questions to Mr [...] or Chiquita on the matter during the Oral Hearing, despite
the opportunity to do so.
5.5.2.
Access to file claims
(252)
In reply to the Statement of Objections, the parties argue that the scope of the access
given to the file was limited. 324 The parties received access to non-confidential
versions of the documents on the file with the exception of business secrets, other
confidential information and internal documents. Following the parties’ claims for
further access to the file, the Hearing Officer approved a Non Disclosure Agreement
(NDA)325 between Chiquita and Pacific regarding documents and submissions on the
file originating from the parties. Following the execution of the NDA, the parties
withdrew their remaining requests for further access to those documents pending
before the Commission. All remaining requests for further access to other documents
on the file have been dealt with by the Commission during the administrative
proceedings.
321
322
323
324
325
EN
See part 4 of the recording of the Oral Hearing, from 02:00:00 to 02:03:00
See Case T-9/99 HFB Holding and others / Commission [1999] ECR p. II-2429, at paragraphs 382 et
seq.
Chiquita agreed only after the Oral Hearing that access to the e-mail of 17 April 2005 could be given to
Pacific, whilst prior to the Statement of Objections and the access to file exercise it had categorically
claimed confidentiality for all documents relating to its internal investigation such as the e-mail of
17 April 2005 and large parts of the reply to the state of play letter.
Recital 455 of Pacific’s reply to the Statement of Objections, recital 241 of Chiquita’s reply to the
Statement of Objections.
Under that agreement, the parties’ external counsels had access to confidential versions of the
respective other party’s submissions to the Commission and identified what additional information they
would wish to use in their defence in reply to the Statement of Objections. The parties then sent to each
other and to DG Competition up-dated non-confidential versions of the identified documents or
passages, which were introduced into the Commission's file.
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(253)
Regarding documents of third parties, Pacific argues326 that it should have been given
access to more than summaries 327 of replies by customers of different banana
importers to the Commission’s requests for information since it would not have the
ability to retaliate against its customers, nor is there any reason to think that it would
do so. When access to the file was given, the parties received access to summaries of
customer replies containing sensitive business data, such as sources of supplies not
only by geographic origin but also by the major suppliers. Those summaries provide
a detailed account of what information was submitted to the Commission by the
customers. The banana business in Southern Europe is highly concentrated and a few
big international importers control a large part of the business and are considerably
larger than many of their customers. It is legitimate to refuse to reveal to
undertakings which are able to place very considerable economic or commercial
pressure on their competitors or on their trading partners, customers or suppliers
certain letters received from their customers, since their disclosure might easily
expose the authors to the risk of retaliatory measures.328 The customer replies stem
not only from customers of Pacific and Chiquita, but also from those of other
importers. Therefore, disclosure of individual confidential replies of customers, as
requested by Pacific, would cause serious harm not only to the interests of the
individual customers, but also to the interests of other banana suppliers in the
business329 which justifies that access to those documents was given in the form of
summaries.330
5.5.3.
Legal professional privilege claims
(254)
Pacific submits 331 that the Commission has breached its rights of defence by not
giving it the opportunity to claim legal professional privilege (LPP) as soon as the
Commission became aware of the possibility that some information in the national
inspection documents transmitted by the Guardia di Finanza could potentially be
protected by LPP. In particular, Pacific maintains that one of the national inspection
326
327
328
329
330
331
EN
See recital 456 of Pacific’s reply to the Statement of Objections.
ID 1636, 1638 and 1639.
Case T-65/89, BPB Industries and British Gypsum [1993] ECR II-389, at paragraph 33 and Case C310/93P, BPB Industries and British Gypsum [1995] ECR I-865, at paragraphs 26 et seq; see also case
T-221/95 Endemol v Commission [1999] ECR II-1299, paragraph 69, and Case T-5/02 Tetra Laval
[2002] ECR II-4381, paragraph 98 et seq.
The Commission is entitled in situations comparable to the present one to accord the parties disclosure
in the form of a summary. Limited disclosure of that type is a balanced response which allows, so far as
is possible, the opposing interests of the parties, on the one hand, and the customers, on the other, to be
reconciled. See to that effect case T-210/01 General Electric / Commission, [2005] ECR, p. II-5575, at
paragraphs 653 ff. Although that judgment concerns a merger proceeding, it refers, at paragraph 653, to
the court ruling in the Cement cartel. It is also noted that the parties finally received further
explanations and were given access to non-confidential versions of two customer replies where a nonconfidential version had been provided to the Commission by the customer concerned.
See point VII of the Commission’s letter of 2 February 2010 (D/633, ID 2296) to Pacific. By letter
dated 5 February 2010 (ID 2318) Pacific referred this issue amongst others to the Hearing Officer who
rejected Pacific’s claims by decision of 22 April 2010 (ID 2481). By decision of 4 May 2010 (ID 2570),
which was taken upon a further request by Pacific, the Hearing Officer confirmed his decision of 22
April 2010, but stated that non-confidential versions of customer replies could be disclosed if such a
non-confidential version had been provided by the customer concerned. A non-confidential version of
two customer replies was subsequently provided to both parties on 6 May 2010 (ID 2575, 2578).
Section 8.3 of Pacific’s reply to the SO.
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documents entitled “Transfer Pricing Analysis”332 is covered by LPP and was used
by the Commission to assess Pacific’s corporate structure. Pacific argues in this
context that the Commission’s interpretation of the concept of LPP is too narrow as
the document in question contains advice on an issue which has a relationship to the
subject-matter of the proceedings and that the document was drawn up by
independent lawyers.
(255)
Legal professional privilege is an essential corollary to the effective exercise of the
rights of the defence. With regard to investigations conducted by authorities of the
Member States, the rights of defence in relation to investigative measures are in
principle determined by the law of the authority carrying out such a measure and
must be addressed with that authority. The lawfulness of the transmission to the
Commission by national authorities of information obtained in application of
national law is a question governed by national law and the Community judicature
has no jurisdiction to rule on the lawfulness, as a matter of national law, of a measure
adopted by a national authority. 333 Therefore, the Italian courts and/or authorities
were competent to ensure that the rights of defence (including LPP issues) in relation
to the seizure of those documents under national law were observed. There is also no
indication that Pacific’s rights of defence were not respected in the Italian
proceedings. In addition, if the Commission were obliged to disclose documents it
has obtained from national authorities to an undertaking under investigation prior to
the Statement of Objections, this would seriously undermine its ability to carry out a
cartel investigation.
(256)
When the Commission carried out an initial screening of the national inspection
documents after receiving copies of them from the Italian authorities, it did not
identify any document or part of document which would, in view of the information
available, have led it to consider them as falling being covered by LPP.334
(257)
In any event, based on the information available to the Commission, even under
Union rules, the document entitled “Transfer Pricing Analysis” would not be covered
by LPP. The document was drawn up before the initiation of the investigation, and
does not contain any reference to the subject-matter of this investigation, nor does it
have any link to advice being given or sought in relation to competition law. There is
nothing in the document that would indicate that it has been drawn up in exercise of
the rights of the defence. A mere marking such as “privileged and confidential –
attorney/client privilege” alone does not suffice to show that a document is covered
by LPP.
332
333
334
EN
For this document see recital (286). In addition, Pacific claimed in its reply to the Statement of
Objections that “several” of the national inspection documents were covered by LPP, but did not
specify which exact documents it meant. In this respect it refers to correspondence between the
Commission and Pacific, ID 1941, 2116, 1647, 2119, 1998, 2115 of the file. Pacific’s claims put
forward in that correspondence have been rejected by the Commission as the information in question
was not covered by LPP.
See Case C-407/04, Dalmine/Commission, [2007] ECR p. I-829, at paragraph 62.
In relation to the notion of LPP under Union competition rules see Joined Cases T-125 and 253/03,
Akzo Nobel Chemicals and Akcros Chemicals/Commission, [2007] ECR, p. II-3523, with further
references to cases AM&S and Hilti.
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5.6.
Application of Article 101(3) of the Treaty
(258)
On the basis of the facts before the Commission, there are no indications to suggest
that the conditions of Article 101(3) of the Treaty could be fulfilled in this case. The
addressees of this decision have not advanced such an argument during the
administrative procedure.
6.
ADDRESSEES
6.1.
General principles
(259)
The addressees of this Decision should be held liable for the anti-competitive
behaviour described in this Decision. As a general consideration, the subject of
Union competition rules is the “undertaking”, a concept that is not identical with the
notion of corporate legal personality in national commercial or fiscal law. The
“undertaking” that participated in the infringement is therefore not necessarily the
same entity as the precise legal entity within a group of companies whose
representatives actually took part in the cartel meetings. The term “undertaking” is
not defined in the Treaty. However, in Shell International Chemical Company v.
Commission, the General Court held that “in prohibiting undertakings inter alia from
entering into agreements or participating in concerted practices which may affect
trade between Member States and have as their object or effect the prevention,
restriction or distortion of competition within the common market, Article 85(1) of
the EEC Treaty [now Article 101(1) of the Treaty on the Functioning of the
European Union] is aimed at economic units which consist of a unitary organization
of personal, tangible and intangible elements which pursues a specific economic aim
on a long-term basis and can contribute to the commission of an infringement of the
kind referred to in that provision”.335
(260)
The Union-law concept of "undertaking" has always been a functional one. The
concept of an undertaking encompasses every entity engaged in an economic
activity, regardless of the legal status of the entity or its precise legal form under
national law.336 For each undertaking that is to be held accountable for infringing
Article 101 of the Treaty in this case, one or more legal entities have been identified
which should bear legal liability for the infringement. According to the case law,
“Community competition law recognises that different companies belonging to the
same group form an economic unit and therefore an undertaking within the meaning
of Articles 81 EC and 82 EC [now Articles 101 and 102 of the Treaty on the
Functioning of the European Union] if the companies concerned do not determine
independently their own conduct on the market”. 337 If a subsidiary does not
335
336
337
EN
See Case T-11/89, [1992] ECR II-757, paragraph 311. See also case T-352/94 Mo och Domsjö AB v
Commission, [1998] ECR II-1989, paragraphs 87-96.
Although an ‘undertaking’ within the meaning of Article 101(1) is not necessarily the same as a
company having legal personality, it is necessary for the purposes of enforcing decisions to identify the
natural or legal person to whom the decision will be addressed. See Case T-305/94 PVC, [1999] ECR,
II-0931, paragraph 978.
Case 48/69 Imperial Chemical Industries v. Commission, [1972] ECR 619, paragraphs 132-133;
Case 170/83 Hydrotherm, [1984] ECR 2999, paragraph 11 and Case T-102/92 Viho v Commission,
[1995] ECR II-17, paragraph 50, cited in Case T-203/01 Michelin v Commission, [2003] ECR II-4071,
paragraph 290.
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determine its own conduct on the market independently, the company which directed
its market strategy forms a single economic entity with that subsidiary and may be
held liable for an infringement on the ground that it forms part of the same
undertaking.
(261)
According to the settled case-law of the Courts, the Commission can generally
assume that a wholly-owned subsidiary essentially follows the instructions given to it
by its parent company without needing to check whether the parent company has in
fact exercised that power. 338 However, the parent company and/or subsidiary can
reverse that presumption by producing sufficient evidence that the subsidiary
“decided independently on its own conduct on the market rather than carrying out
the instructions given to it by its parent company and such that they fall outside the
definition of an ‘undertaking”. 339 Moreover, it is clear from the case-law that a
presumption, even difficult to rebut, remains within acceptable limits if it is
proportionate to the legitimate aim pursued, if it is possible to bring proof to the
contrary and if the rights of defence is assured340.
(262)
Where an infringement of Article 101 of the Treaty is found to have been committed,
it is necessary to identify a natural or legal person who was responsible for the
operation of the undertaking at the time when the infringement was committed so
that it can answer for it.
(263)
When an undertaking that has committed an infringement of Article 101 of the
Treaty subsequently disposes of the assets which contributed to the infringement and
withdraws from the market in question, it continues to be answerable for the
infringement if it has not ceased to exist.341 If the undertaking which has acquired the
assets carries on the violation of Article 101 of the Treaty, liability for the
infringement should be apportioned between the seller and the acquirer of the
infringing assets, each undertaking being responsible for the period in which it
participated through those assets in the cartel. However, if the legal person initially
answerable for the infringement ceases to exist, being purely and simply absorbed by
another legal entity, that latter entity must be held answerable for the whole period of
the infringement and thus liable for the activity of the entity that was absorbed.342
The mere disappearance of the person responsible for the operation of the
undertaking when the infringement was committed does not allow it to evade
338
339
340
341
342
EN
Joined Cases T-71/03 Tokai Carbon and Others v Commission, [2005] ECR II-10, paragraph 60;
Case T-354/94 Stora Kopparbergs Bergslags v Commission, [1998] ECR II-2111, paragraph 80, upheld
in Case C-286/98P Stora Kopparbergs Bergslags v Commission, [2000] ECR I-9925, paragraphs 27-29;
and Case 107/82 AEG v Commission, [1983] ECR 3151, paragraph 50.
Joined Cases T-71/03 etc. Tokai Carbon and Others v Commission, 15 June 2005, paragraph 61.
C-521/09 P, Elf Aquitaine v Commission, paragraphs 60-62.
Case T-6/89 Enichem Anic v Commission (Polypropylene), [1991] ECR II-1623; Case C-49/92P
Commission v Anic Partecipazioni, [1999] ECR I-3125, paragraphs 47-49.
See Case C-279/98 P Cascades v Commission, [2000] ECR I-9693, paragraphs 78-79: “It falls, in
principle, to the natural or legal person managing the undertaking in question when the infringement
was committed to answer for that infringement, even if, when the Decision finding the infringement was
adopted, another person had assumed responsibility for operating the undertaking .. Moreover, those
companies were not purely and simply absorbed by the appellant but continued their activities as its
subsidiaries. They must, therefore, answer themselves for their unlawful activity prior to their
acquisition by the appellant, which cannot be held responsible for it”.
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liability. 343 Liability for a fine may thus pass to a successor where the corporate
entity which committed the violation has ceased to exist in law.
(264)
Different conclusions may, however, be reached when a business is transferred from
one company to another, in cases where transferor and transferee are linked by
economic links, that is to say, when they belong to the same undertaking. In such
cases, liability for past behaviour of the transferor may transfer to the transferee,
notwithstanding the fact that the transferor remains in existence.344
6.2.
Liability in this case
(265)
It is established by the facts as described in this Decision that the following entities
were involved in, or bear liability for, the infringement within their respective
undertakings.
6.2.1.
Chiquita
(266)
The evidence described in this Decision shows that Chiquita Italia SpA participated
directly in the infringement concerning bananas in Greece, Italy and Portugal.
(267)
During the period of the infringement, Chiquita Italia SpA was directly wholly
owned and controlled by Chiquita Banana Company BV. Chiquita Banana Company
BV was wholly owned and controlled by Chiquita Brands LLC, which was wholly
owned and controlled by Chiquita Brands International, Inc.345
(268)
In 2008, Chiquita restructured the top level of its European operations. Since then,
Chiquita Banana Company BV has [...] indirectly been wholly owned and controlled
by Chiquita Brands LLC. Chiquita Brands LLC has remained a wholly owned
subsidiary of Chiquita Brands International, Inc.346
(269)
Therefore there is a presumption that Chiquita Brands International, Inc. exercises
decisive influence over the conduct of those subsidiaries on the market.347
(270)
In addition, there are further elements which confirm and thus corroborate the
presumption that Chiquita Brands International, Inc. exercised decisive influence
over its subsidiaries. In particular, this is shown by the reporting lines and the
multiple functions held within the Chiquita Group of the officials directly involved in
the collusive contacts or of the persons to whom they reported. Such reporting lines
would result in the Chiquita Brands International, Inc's full knowledge of its
subsidiaries' commercial policy and would allow it to exercise regular control and
direction.
(271)
According to Chiquita, the ultimate responsibility for the banana business in the
Southern European region348 lies with [...], who was the [...] of Southern Europe at
343
344
345
346
347
EN
See Case T-305/94 PVC II, [1999] ECR II-931, paragraph 953.
See judgment in Joined Cases C-204/00 P (and other), Aalborg Portland A/S a.o. v Commission [2004]
ECR I-267, paragraphs 354-360, as confirmed in case T-43/02 Jungbunzlauer AG v Commission,
quoted above, par. 132-133.
ID 1716, p. 4-8, 10, ID 1714 (addendum to Chiquita's reply to the 2nd request for information).
ID 1716, p. 4-8, 14, ID, 1714 (addendum to Chiquita's reply to the 2nd request for information).
See also section 2.2.1.1.
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EN
the time of the infringement and still is today.349 He reports to [...], [...] of Chiquita
Fresh Europe. 350 The reporting took place on a continuous basis via weekly
telephone calls and daily e-mail exchanges.351 He also reported to the management of
Chiquita Brands International, Inc. 352 Mr [...] has also admitted informal contacts
with the ultimate parent company in the United States.353
(272)
Mr [...] also participated in Chiquita's European Leadership Team meeting and the
Thursday morning business conference calls with Chiquita's European
management.354
(273)
These key employees held multiple functions throughout the Chiquita group:
NAME
COMPANY
[...]355
348
349
350
351
352
353
354
355
EN
POSITION
PERIOD
[...]
[...]
Alpha Fruit Hellas SA
[...]
[...]
Chiquita Banana
Company BV
Chiquita Brands
International, Inc.
[...]
[...]
[...]
[...]
Chiquita Hellas SA
[...]
[...]
Chiquita Italia SpA
[...]
[...]
For Chiquita, the Southern European region contains the Mediterranean Member States of the European
Union (Italy, Portugal, Spain, Greece, Slovenia, Malta and Cyprus), see [...]
[...], ID 1732, p. 253, 254 ([...]'s interview), see also [...]. [...] started working for Chiquita from
December 1989, holding different positions that can be found in the table below.
Chiquita submits that ''[...] reported to [...] [who was the predecessor of [...]] from 2000 until 2004, and
to [...] since 2005'', see [...].
ID 419, p. 4 (non-confidential version at ID 1732, p. 254) ([...]'s interview), [...]. See also ID 2013, p. 5,
13 (Chiquita inspection documents).
Chiquita submits that ''the business plan is presented by [[...]] to Mr. [...] in September, who then
forwards it to Headquarters in Cincinnati around October/November for approval. … Work is then
carried out on the basis of the annual business plan'', see ID 419, p. 5 (non-confidential version at ID
1732, p. 255) ([...]'s interview). Moreover, Chiquita Italia's management reports to Chiquita Banana
Company BV, where [...] was [...] from [...] until [...]. They, in turn, report to Chiquita Brands LLC,
where [...] was [...] from [...] until [...] and [...] from [...] until [...]. Chiquita Brands LLC's
management finally reports to Chiquita Brands International, Inc., where again [...] was [...] and [...] for
Chiquita Fresh Group, from [...] until [...], see ID 1719, p. 4, 6, 8 (Annex 1 to Chiquita's updated reply
to 2nd request for information) and ID 1716, p. 2-3. ID 1944 (confidential version at ID 1029) (Mr [...]'s
e-mail back-ups) contains numerous examples of Mr [...]'s reporting to and the involvement of his
European and American superiors, in particular Mr [...] and Mr [...], in discussions about the day-to-day
business as well as about the extraordinary business, for example, p. 17, 19, 22, 33, 35, 54, 154, 268,
270, See also [...].
ID 1732, p. 254 ([...]'s interview).
ID 419, p. 4 (non-confidential version at ID 1732, p. 254) ([...]'s interview), see also, for example, ID
1060, p. 56-58 (Transferred Transcript 13) regarding Thursday calls and price setting. As examples of
the information sent from Chiquita's European headquarters in Antwerp to Mr [...] (and the other way
round) see ID 1947, p. 205-216, 306-312 and 328-331 (annexes to the Transferred Transcripts). See
also ID 2021, p. 12-13, 16-27 (conf ID 296, p. 15-26), 108 (Chiquita inspection documents).
ID 1732, p. 254 ([...]'s interview), [...], ID 1716, p. 3-13 (Chiquita's reply to the 2nd request for
information), ID 1719, p. 4-13 (annex to Chiquita's reply to 4th RFI).
78
EN
[...]356
Chiquita Portugal Venda
E Comercializaçao De
Fruta, Unipessoal Lda
[...]
[...]
Chiquita Brands L.L.C.
[...]
[...]
Chiquita Brands L.L.C.
[...]
[...]
Chiquita Brands
International, Inc.
Chiquita Fresh North
America L.L.C.
Chiquita Fresh North
America L.L.C.
Chiquita International
Limited
Chiquita International
Trading Company
Chiquita Banana
Company BV
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
Chiquita Hellas SA
[...]
[...]
Chiquita Italia SpA
[...]
[...]
Alpha Fruit Hellas SA
[...]
[...]
Chiquita Portugal Venda
E Comercializaçao De
Fruta, Unipessoal Lda
[...]
[...]
Chiquita Italia SpA
[...]
[...]
Chiquita Banana
Company BV
[...]
[...]
[...]
[...]
Chiquita Italia SpA
[...]
[...]
Chiquita Portugal
[...]
[...]
Alpha Fruit Hellas SA
[...]
[...]
Chiquita Hellas SA
[...]
[...]
Chiquita Portugal Venda
E Comercializaçao De
[...]
[...]
357
[...]
[...]358
[...]359
356
357
358
359
EN
ID 1716, p. 5-12 (Chiquita's reply to the 2nd request for information), ID 1719, p. 4-12 (annex to
Chiquita's reply to 4th request for information).
ID 1716 (Chiquita's reply to the 2nd request for information), ID 1719 (annex to Chiquita's reply to 4th
request for information).
ID 1716 (Chiquita's reply to the 2nd request for information), ID 1719 (annex to Chiquita's reply to 4th
request for information).
[...], ID 1732, p. 253-254 ([...]'s interview), ID 1716, p. 4, 9, 10, 13 (Chiquita's reply to the 2nd request
for information), ID 1719, p. 4, 9, 10, 13 (annex to Chiquita's reply to 4th request for information).
79
EN
Fruta, Unipessoal Lda
(274)
Chiquita submits that neither Mr [...] (Mr [...]'s predecessor) nor Mr [...] used to give
instructions to Mr [...] with respect to sales, volumes and prices in the markets of
Italy, Portugal and Greece.360 Evidence on the file, however, shows regular reporting
from Mr [...] to those individuals on all business matters relating to bananas, as the
following examples demonstrate.
(275)
Chiquita itself lists Mr [...] as one of its "employees operating or responsible" for the
Southern European banana business.361 Also, Mr [...]'s e-mail to, amongst others, Mr
[...] and Mr [...] of 10 April 2005 instructing them not to have contacts with
competitors "other than in the context of fruits or licensing transactions"362 clearly
shows that he had the authority to instruct Chiquita's European employees, including
Mr [...] and Mr [...], regarding their business conduct in relation to the pricing and
volumes of bananas.
(276)
According to an e-mail of 23 February 2005 from Mr [...] to Mr [...] and Mr [...], Mr
[...] had talked to Mr [...]. He reports that Mr [...] would investigate with Mr [...]
whether there is any interest to supply additional volumes to Chiquita Antwerp. "I
told him, that most probably this potential volume will not compete in the market
place, because it is already prebooked. He should come back with a preliminary
answer soon".363 The text of the e-mail clearly indicates that Mr [...]'s superiors at
least implicitly approved his line of conduct which he had previously proposed to
them.
(277)
Another illustration is an e-mail of 13 November 2001 to, amongst others, Mr [...]
(Mr [...]'s predecessor) and [...]364 with the title "[...] deal 2002" in which Mr [...]
summarises a verbal purchase agreement with [...] to his hierarchy and colleagues as
follows (40 000 boxes every 2 weeks arrival Salerno; "a fair commission that [...]
will get on the basis of its selling official weekly price… On the top they will decide
to withdraw from core markets" (emphasis added); reports on goods sold to Chiquita
on cleared basis (T2 licences) using [...] total volume licences) and gives instructions
for next steps to finalise the deal.365 While that document refers to a time period prior
to the infringement to which this Decision relates, there is no indication that that
evidence on the reporting and decision making structure does not also apply for the
period of the infringement.
360
361
362
363
364
365
EN
[...].
[...].
ID 943, p. 39 (non-confidential version at 1739, p. 37) (annexes to Oral Statement 4), see also ID 950
(non-confidential version at ID 2007), p 6 (Chiquita's Oral Statement 4) where the date of the e-mail is
mistakenly indicated as 10 April 2004.
ID 1731, p. 118 (annex to Chiquita's Oral Statement 1).
Mr [...] reported to the [...] within Chiquita Brands International, Inc., [...]. On Mr [...]'s involvement in
Chiquita's European business see also ID 2021, p. 4-11, and ID 298, p. 2-3 (non-confidential version at
ID 2018, p. 3-4) (Chiquita inspection documents).
[...], ID 1029 (non-confidential version at ID 1944), p 22 (Mr [...]'s e-mail back-up data). See also ibid.,
p. 23.
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EN
(278)
Moreover, Chiquita submits that Mr [...] and Mr [...] were ultimately responsible for
decisions with respect to licence transactions. 366 Decisions on licence issues and
decisions on volumes were inevitably interrelated (see section 2.3.2).
(279)
Chiquita also submits that Mr [...] proposed the yearly business plan for shipments
for approval by Antwerp (Mr [...]) and Cincinnati (Mr [...]).367
(280)
Chiquita's organisation charts 368 for its Southern European business show that Mr
[...], [...] was reporting to Mr [...] until the end of 2005. The Greek country manager
was reporting to Mr [...].369 Chiquita submits that Mr [...] was working for Chiquita
Brands LLC until the end of 2005 and confirms that he "held the title [...] ".370
(281)
Chiquita Brands International, Inc., Chiquita Banana Company BV and Chiquita
Italia SpA should therefore be held jointly and severally liable for the entire duration
of the infringement in respect of Chiquita Italia SpA's direct involvement in the
infringement (see Section 7 below for the duration).
6.2.2.
Pacific
(282)
The evidence described in this Decision shows that Pacific Fruit Company Italy SpA
(PFCI) and Firma Leon Van Parys NV (LVP) 371 participated directly in the
infringement concerning bananas in Greece, Italy and Portugal.
(283)
During the period of the infringement PFCI was directly wholly owned and
controlled by LVP which held 99.75 % of the shares in PFCI (0.25 % of PFCI's
shares were held by FSL Holdings NV). LVP is owned by FSL Holdings NV
(Belgium) (100 % minus one share) and by FSL Finance BV (Netherlands; 1 share).
Those two companies are owned by TW Trading BV (Netherlands) [...], which is in
turn owned by Transworld Trading NV (Netherlands Antilles).372 FSL Holdings NV
and LVP are presumed to exercise decisive influence over their respective
subsidiaries' conduct on the market.
(284)
LVP and PFCI maintain that they do not have information available on the corporate
structure above Transworld Trading NV, but state that it is their belief that the main
shareholders of the ultimate parent company of PFCI and LVP are controlled by
members of the [...] Family.373
(285)
Given the fact that the group of companies to which PFCI and LVP belong is not a
publicly listed group of companies, information publicly available on the corporate
366
367
368
369
370
371
372
373
EN
[...]
[...].
ID 1724, 1725 (annex to Chiquita's reply to the 4th request for information), ID 1732, p. 14 (Chiquita's
organigrammes).
[...]. See also examples of this reporting in ID 1944, for example, p. 59-78 (Mr [...]'s e-mail back-ups).
ID 1726, p. 3-4 (Chiquita's reply to the 4th request for information).
The group of entities which PFCI and LVP are part of is collectively referred to as "Pacific" or "Pacific
Fruit", see recital (15).
ID 1070 (non-confidential version at ID 1900), p. 3-5, ID 1071, 1073 (Pacific's reply to the 6th request
for information).
ID 1070 (non-confidential version at ID 1900), p. 4 (Pacific's reply to the 6th request for information),
ID 1369 (non-confidential version at ID 1934), p. 1 (Pacific's reply to the 9th request for information).
81
EN
structure of the group is limited. LVP and PFCI have also maintained their ignorance
as to the corporate structure of the group of companies to which they belong (see
recital (284)). Despite those limitations, the documentary evidence in the
Commission file does reveal further information on the corporate structure of the
group above Transworld Trading NV.
(286)
Most importantly, in a document of November 2001 entitled "Transfer Pricing
Analysis" which the Guardia di Finanza copied from Mr [...]'s computer during its
inspection it is stated that "LVP is a member of the 'Fruit Shippers Group'… The
ultimate parent company of the Fruit Shippers Group is Fruit Shippers Limited, a
Bahamas company ('FSL')." In addition to that statement, the document reveals that
[...], LVP's [...], 374 had added the following comment in relation to the ultimate
parent company of LVP: "Do we need to mention all this? Why over-expose
ourselves? Better to be a bit 'vague'. Let's discuss."375
(287)
Further indications on the corporate structure above Transworld Trading NV is found
in a judgment of 21 November 2002 of the United Kingdom High Court of Justice,
Queens Bench Division, Commercial Court, (concerning litigation between Alvaro
Noboa and other members of the Noboa family) which describes the Noboa family's
business as "export of bananas. … The principal Ecuadorian company engaged in
the banana business was Exportad[o]ra Bananera Noboa S.A. (EBN). The ultimate
holding company and the company owning most of the overseas business was FSL
[Fruit Shippers Limited], a company incorporated in the Bahamas. FSL was
undoubtedly the most valuable asset in the empire."376 According to that judgment "it
was simple indisputable fact that Alvaro [Noboa] obtained control over 50.1% of
FSL shares". 377 The judgment also states that Carlos Aguirre was at the time
"director and chief financial officer of FSL; former President of FSL; director of
various companies within the FSL group. Member of executive committee appointed
by Alvaro Noboa to run FSL during presidential campaign [of Alvaro Noboa]."378
(288)
During the Oral Hearing Mr [...] declared, on behalf of Chiquita, that Chiquita has
always been told that PFCI is the sales branch of the Noboa Group for the Southern
European region reporting to their headquarter in North Europe and that they were
374
375
376
377
378
EN
ID 1369 (non-confidential version at ID 1934), p. 2 (Pacific's reply to the 9th request for information).
ID 1001, p 657-672 (non-confidential version at ID 1989, p. 304 et seq.)(document obtained from GdF,
allegato 17), see also ID 1239 (confidential) (screenshot of the beginning of the document with
comments); the file name of this document is "TransfPriceMemo_Nov2001.doc" and it was last
modified on 15 November 2001, 10.53 h.
ID 1204, p. 34 (Molestina v Noboa Ponton, [2002] EWHC 2413 (Comm)). The case concerns a dispute
between Mr Alvaro Noboa and his siblings about entitlement of shares to the business of their father,
the late Louis Noboa. The judgment dismisses claims by Mr Alvaro Noboa's sisters against him
regarding agreements and damage claims concerning transfers of share ownership at FSL. ID 1204, p.
33-34.
According to Pacific, Mr [...] is a representative of the ultimate shareholders of PFCI (see, for example,
ID 212 (non-confidential version at ID 1841), p. 4, Pacific's reply to the 1st request for information).
The judgment referred to in recital (287) spells out that Mr [...] had control of FSL. See ID 1204, p. 29
and 52.
ID 1204, p. 52 (Molestina v Noboa Ponton, [2002] EWHC 2413 (Comm)), see also the reference to
FSL in ID 1001, p 291 (non-confidential version at ID 1988, p. 291) (document obtained from GdF,
allegato 17).
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EN
fully owned by the Noboa Group. 379 Pacific did not comment on that statement
during the Oral Hearing.
(289)
The file contains elements which confirm and thus corroborate the presumption that
FSL Holdings NV and LVP exercised decisive influence over PFCI. In FSL
Holdings NV, LVP and PFCI the same persons have management responsibilities
([...], [...], [...]). FSL Holdings NV and LVP also have the same address
(Zeevaartstraat 3, Antwerp, Belgium).380 Pacific submits that PFCI's sales team (that
is to say, Mr [...], Mr [...] and Mr [...]) reported to Mr [...] on a weekly basis on future
pricing in Southern Europe.381 During the period of the infringement, Mr [...] was
PFCI's [...] for Italy and Mr [...] PFCI's [...] for, amongst others,, Portugal and (until
May 2005) for Greece. As of June 2005, Mr [...] took over the responsibility for
Greece from Mr [...] whose [...] he had been prior to that date.382
(290)
Pacific submits that while Mr [...] was working for PFCI, he had no responsibility for
sales, volume or price setting or shipping of bananas and that his duties in reality
simply extended to carrying out financial analysis and benchmarking analysis of
Pacific's performance for Mr [...].383 Pacific, however, itself admits that as [...] Mr
[...] had wide powers including the right to represent the company externally, to
conclude contracts and to “hire or fire” employees.384 Moreover, the documentary
evidence on the file clearly shows Mr [...]'s involvement in business discussions,
reporting and decision making, including the setting of prices and volumes of
bananas for the Southern European region, thus contradicting Pacific's statement that
Mr [...] was only involved in financial analysis and benchmarking.385 Therefore, it is
379
380
381
382
383
384
385
EN
See part 4 of the recording of the Oral Hearing, from 00:02:05 to 00:03:00.
ID 1073 (annex to Pacific's reply to the 6th request for information).
ID 884 (non-confidential version at ID 1849), p. 2 and 8 (Pacific's replies to the 2nd request for
information). During the inspections at PFCI in Rome, the employees responsible for sales in the
Southern European region also explained that they were reporting on a weekly basis (for Greece every
second week) to LVP regarding estimated prices and volumes for the following week, ID 89 (nonconfidential version at ID 1754), p. 2, 4, 6 (explanations by Mr [...], Mr [...] and Mr [...]). See, for
example, also the e-mail string ID 161 (non-confidential version at ID 1824) (Pacific inspection
document) where Mr [...] signed as "[...] Pacific Fruit-Europe".
ID 908 (non-confidential version at ID 1859), p. 2 (Pacific's reply to the 3rd request for information).
Pacific submits that the sales representatives were responsible for the setting of prices and volumes and
sales in their respective territories.
ID 908 (non-confidential version at ID 1859), p. 1, 6 (Pacific's reply to the 3rd request for information),
ID 1263 (non-confidential version at ID 1919), p. 8 (Pacific's reply to the 8th request for information).
ID 1263 (non-confidential version at ID 1919), p. 7 (Pacific's reply to the 8th request for information),
see also ID 1920, p. 8-10 (extract of the Italian Company Register).
See footnote 76. See also e.g. ID 95 (non-confidential version at ID 1759), p. 14 and ID 97 (nonconfidential version at ID 1761) (Pacific inspection documents). ID 97 (non-confidential version at ID
1761) contains numerous management reports with handwritten annotations of [...]. See also in
particular pp. 16 to 19 containing detailed instructions on weekly reporting to Antwerp (with Mr [...]'s
handwritten annotations). See also the documents from Guardia di Finanza, for example, ID 188 (nonconfidential version at ID 1978), pp. 11, 12, 23, 24, 28, 31, 37, ID 191 (non-confidential version at ID
1981), pp. 3, 12, 13, 14, 32, 33, 61, ID 193 (non-confidential version at ID 1983), pp. 5, 6, 15, 22, 23,
29, 32, 35, 38, 40, ID 194 (non-confidential version at ID 1984), pp. 19, 20, 29, and also ID 180 (nonconfidential version at ID 1970), pp. 34, 53, ID 182 (non-confidential version at ID 1972), pp. 4, 15, 20,
22, 33, 34, 44, 47, ID 183 (non-confidential version at ID 1973), p. 5, ID 185 (non-confidential version
at ID 1975), pp. 8, 17, 21, 44, ID 186 (non-confidential version at ID 1976), pp. 15, 26, 29, 43, 44, ID
187 (non-confidential version at ID 1977), p. 10, ID 190 (non-confidential version at ID 1980), p. 18,
ID 192 (non-confidential version at ID 1982), pp. 22, 25, 41, 42.
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EN
concluded that Mr [...] was involved in business discussions, reporting and decision
making, including the setting of prices and volumes of bananas for the Southern
European region.
(291)
In the internal Chiquita e-mail referred to at recital (271) it is also reported that Mr
[...] had told Mr [...] that he would report Chiquita's proposal to Mr [...].
(292)
Based on the following elements it is concluded that PFCI, LVP and FSL Holdings
form part of the Noboa Group/Corporacion Noboa. The Commission file contains
documents which confirm that LVP belongs to the Noboa Group and that it had
direct contacts with Noboa Group companies. An organisation chart of the Noboa
Group shows that LVP belongs to Export Division of the Noboa Group outside
Ecuador.386
(293)
Furthermore, there are documents in the file which demonstrate that PFCI and LVP
had direct contacts with representatives of ultimate shareholders of the group
regarding pricing of the bananas that Pacific sells in the Union.387
(294)
Firstly, Pacific's internal senior call report of September 2000 shows detailed
discussions on pricing and other commercial matters between the management of
PFCI, the management of LVP and Mr [...], who, according to Pacific, is a
representative of the ultimate shareholders of LVP.388
(295)
Secondly, an e-mail dated 27 February 2001 from [...] (see recital (287)) and an email reply dated 1 March 2001 from [...] ([...] of LVP and [...] of PFCI), with the
386
387
388
EN
ID 997 (non-confidential version at ID 1893), p 19-21 (Pacific documents).
For example, there are numerous examples of communications and reporting between the managers of
European entities of the Noboa group, such as LVP, and representatives of the ultimate shareholders of
the Noboa group as well as with persons holding high management posts within the Noboa group (for
example, ID 1001, p. 77, 91, 288-291, 293, 295, 300-301, 387-390, 393-394, 504, 546, 561-563 703,
confidential version; for non-confidential versions see the respective pages in ID 1988 and 1989). See
also as examples from Pacific's inspection documents, in particular ID 95 (non-confidential version at
ID 1759), pp. 2-3, ID 97 (non-confidential version at ID 1761), p. 5, ID 104 (non-confidential version at
ID 1768), p. 13, ID 105 (non-confidential version at ID 1769), p. 7 and ID 106 (non-confidential
version at ID 1770), p. 3. Further examples can be found in ID 97 (non-confidential version at ID
1761), pp. 99, 101, 103, 107, 109, 111, 113, 115, 126-134, 144-145, ID 103 (non-confidential version at
ID 1767), pp. 8, 10, ID 105 (non-confidential version at ID 1769), pp. 11-12, ID 135 (non-confidential
version at ID 1798), pp.1-2, ID 137 (non-confidential version at ID 1800), p.2, ID 138 (non-confidential
version at ID 1801), p. 2, ID 140 (non-confidential version at ID 1803), pp. 1-2, ID 143 (nonconfidential version at ID 1806), pp. 1-2, ID 144 (non-confidential version at ID 1807), pp. 1-2 and ID
152 (non-confidential version at ID 1815), pp. 1-2. Those documents provide evidence that employees
of PFCI and LVP had direct business contacts with employees of the Noboa group located in Ecuador
and the US. GYE in several e-mail addresses in those documents is an abbreviation for Guayaquil, a
city in Ecuador, see ID 1176 (non-confidential version at ID 1910), p. 5 (PFCI's reply to 7th request for
information). Mr [...] was involved in the supply of fruits and freight from Ecuador to LVP and its
subsidiaries in Europe, see ID 1176 (non-confidential version at ID 1910), p. 5 (PFCI's reply to 7th
request for information). There are numerous examples in Pacific's inspection documents showing
direct reporting on prices and volumes to Mr [...] and instructions from Mr [...] on prices (see ID 97-106
(non-confidential version at ID 1761-1770), for example, ID 98 (non-confidential version at ID 1762),
p. 4-5; ID 100 (non-confidential version at ID 1764), p. 2). See also ID 96 (non-confidential version at
ID 1760) (Pacific inspection document-extract from Pacific's internal directory).
ID 178 (non-confidential version at ID 1968) (document obtained from GdF, allegato 1B), see also
recital (91).
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EN
subject line "Precios de Venta", shows detailed discussions involving both [...] and
[...] on final sales prices of Pacific in the Union (including Southern Europe).389
(296)
Thirdly, in another e-mail dated 26 May 2000 from [...] to [...],[...] and [...], Mr [...]
communicates his decision regarding pricing for final customers in the Union and
speaks about those prices using the terms "we" and "us", thus indicating that LVP's
sales prices in the EEA are prices of the Noboa Group in the EEA.390 Moreover,
documents found at Pacific during the Commission's inspection contain two
memorandums with attachments on letter paper with "Bonita" logo addressed, among
others, to [...] with a view to communicating detailed information on
Noboa's/Exportadora Bananera Noboa S.A.'s (EBNSA) weekly export quantities
giving reports both on realised exports and forecasted quantities and comparing those
with competitors' export quantities.391
(297)
Fourthly, Mr [...]'s handwritten notes of a "Market Meeting" of 17 January 2006
which were found during the inspections at PFCI read: “[...]: … I want to keep [...]’s
confidence? I want him to trust us, he needs to know & understand that we know
what the competition are doing … We need competition information so I can
correctly inform Ecuador … we need to keep Ecuador informed."392 Apart from Mr
[...], Mr [...], Mr [...], Mr [...] and Mr [...] of Pacific were also present at this "Market
Meeting". According to Pacific, the notes (presumably "[...]" and "Ecuador") refer to
the representatives of the ultimate shareholders of LVP393, with "[...]" thus clearly
referring to Mr [...].
(298)
Fifthly, a Chiquita internal e-mail of July 2001 reports on discussions between
Chiquita and Pacific in relation to co-loading and co-sourcing and states that Mr [...]
could not "get [...] to budge" on certain conditions of the negotiations. According to
Chiquita, "[...]" most likely refers to Mr [...]. 394 This shows that a competitor of
Pacific was also well aware that the agreement of Mr [...] - who Pacific has, during
the proceedings in this case, confirmed to be a representative of the ultimate
shareholders of LVP - was needed in order for Pacific to be able to conclude any
arrangements such as co-loading or co-sourcing.
(299)
Since the exact corporate structure of the Noboa Group/Corporation Noboa could not
be identified, it is concluded also from the above evidence taken together that FSL
Holdings NV, Firma Leon Van Parys NV and Pacific Fruit Company Italy SpA form
part of one undertaking. Moreover, during the administrative procedure, including in
their reply to the Statement of Objections, none of these companies argued the
opposite.
389
390
391
392
393
394
EN
ID 997 (non-confidential version at ID 1893), p. 10-11 (Pacific insprection document AJC 2). As
another example of extensive reporting to [...], see ID 121 (non-confidential version at 1784), p. 10
(Pacific inspection document).
ID 1370 (non-confidential version at ID 1935), p. 2 (document AJC3).
ID 1370 (non-confidential version at ID 1936, 1937) (annex to Pacific's reply to the 9th request for
information). The information given in the attachments to the memos contains for example details on
Noboa vessels, volumes on vessels, voyage timing and route.
ID 110 (non-confidential version at ID 1773), p 10-11(inspection document SDS 16).
ID 1176 (non-confidential version at ID 1910), p. 4 (Pacific's reply to the 6th request for information).
ID 1733, p 135 and [...].
85
EN
EN
(300)
FSL Holdings NV, Firma Leon Van Parys NV and Pacific Fruit Company Italy SpA
should therefore be held jointly and severally liable for the entire duration of Pacific
Fruit Company Italy SpA's and Firma Leon Van Parys NV's respective direct
involvement in the infringement (see Section 7 for the duration). In this context, the
liability of Firma Leon Van Parys NV is based on its direct involvement as well as
on its exercise of decisive influence over the commercial policy of Pacific Fruit
Company Italy SpA. The Commission points out that either of the two elements
suffices to hold Firma Leon Van Parys NV liable for the infringement.
6.2.3.
Conclusion
(301)
Based on the foregoing, it has been established that the following companies directly
participated in the infringement of Article 101 of the Treaty, or should bear liability
for it, for the entire duration of their respective participation (see Chapter 7):
–
Chiquita Brands International, Inc.
–
Chiquita Banana Company BV
–
Chiquita Italia SpA
–
FSL Holdings NV
–
Firma Leon Van Parys NV
–
Pacific Fruit Company Italy SpA.
7.
DURATION OF THE INFRINGEMENT
(302)
[...] (see section 4.1), the exact date on which the infringement started can no longer
be established with certainty. Hence, the Commission will for the purpose of this
Decision limit its assessment to the period from 28 July 2004, which is the date of
the meeting between Mr [...] and Mr [...] of Chiquita and Mr [...] of Pacific where
they set a joint strategy for Italy, Portugal and Greece.
(303)
With regard to the ending of the infringement, it is not possible to ascertain the exact
date when the participants had their last collusive contacts. Chiquita has submitted
that the collusive conduct stopped at the time of its immunity application, which it
submitted on 8 April 2005. Chiquita has pointed out several elements that suggest
that the collusive contacts referred to in an e-mail of 11 April 2005 took place during
the preceding week (see recital (141)). For the reasons set out in recitals (140) to
(142), it is considered that the communications evidenced by the said mail must have
taken place before Monday 11 April 2005, that is to say, during the week of Monday
4 April to Sunday 10 April 2005. It cannot be demonstrated that collusive contacts
between the parties took place after Chiquita’s immunity application.
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EN
(304)
There are, however, several elements showing that the cartel produced effects for
marketing week 15 of 2005. 395 The internal Pacific e-mail of 11 April 2005 (see
recital (126)) states for marketing week 15 that Mr [...] “will give instructions to keep
alll [sic] prices unchanged”. Chiquita explained that its vessels for marketing week
15 were calling in Genova, Italy, on Monday 11 April 2005, in Portugal on Friday 8
April 2005 and in Greece on Sunday 10 April 2005.396 As in Greece and Portugal
price discussions with customers started already prior to the arrival of the vessel (see
recital (46)-(48)) and the arrangements were at least already partially implemented
by Chiquita, thus producing effects at and potentially after the time of Chiquita’s
immunity application. In this respect, it must be recalled that, according to Chiquita,
in most weeks its prices, once set, remained the same throughout the marketing week
(see recitals (43) and (46) et seq.) and it is therefore likely that even after the date of
Chiquita’s immunity application, Pacific could still have relied to a certain extent on
the information obtained during the last collusive contacts with Chiquita. As regards
implementation by Pacific, the internal Pacific e-mail of 11 April 2005 provided
input to Pacific’s price setting for its marketing week 15 of 2005. It is, however, not
possible to ascertain the exact date when the arrangement ceased to produce effects.
(305)
For those reasons, 8 April 2005, should, for the purpose of this Decision and in
favour of all addressees, be taken as the end date of the infringement.
(306)
It follows that the duration of the infringement for each of the parties was as follows:
Chiquita Brands International, Inc., Chiquita Banana Company BV and
Chiquita Italia SpA: from 28 July 2004 until 8 April 2005, that is to say, 8
months and 12 days.
–
FSL Holdings NV, Firma Leon Van Parys NV and Pacific Fruit Company Italy
SpA: from 28 July 2004 until 8 April 2005, that is to say, 8 months and 12
days.
8.
REMEDIES
8.1.
Article 7 of Regulation (EC) No 1/2003
(307)
Where the Commission finds that there is an infringement of Article 101 of the
Treaty it may by decision require the undertakings concerned to bring such
infringement to an end in accordance with Article 7(1) of Regulation (EC) No
1/2003.
(308)
Given the secrecy in which the cartel arrangements were carried out, it is not possible
to determine with absolute certainty that the infringement has ceased. It is therefore
necessary for the Commission to require the undertakings to which this Decision is
addressed to bring the infringement to an end (if they have not already done so) and
395
396
EN
–
For the term marketing week see footnote 44. Calendar week 15 of 2005 was 11 to 17 April 2005.
Chiquita’s marketing week usually started on Monday for Italy, on Thursday before the arrival of the
vessel for Greece and a few days prior to the arrival of the vessel in Portugal, see recitals (43) et seq.
See ID 1125 (Chiquita’s reply to the 1st request for information), Chiquita’s presentation during the
Oral Hearing and annex D and recital 114 of Chiquita’s reply to the Statement of Objections.
87
EN
henceforth to refrain from any agreement, concerted practice or decision of an
association which might have the same or a similar object or effect.
8.2.
Article 23(2) of Regulation (EC) No 1/2003
(309)
Under Article 23(2) of Regulation (EC) No 1/2003, the Commission may by decision
impose fines on undertakings where, either intentionally or negligently, they infringe
Article 101 Treaty. For each undertaking participating in the infringement, the fine
must not exceed 10% of its total turnover in the preceding business year.
(310)
Pursuant to Article 23(3) of Regulation (EC) No 1/2003, the Commission must, in
fixing the amount of the fine, have regard to all relevant circumstances and
particularly the gravity and duration of the infringement, which are the two criteria
explicitly referred to in that Regulation. In doing so, the Commission sets the fines at
a level sufficient to ensure deterrence. Moreover, the role played by each undertaking
party to the infringement is assessed on an individual basis. In particular, the
Commission reflects in the fines imposed any aggravating or mitigating
circumstances pertaining to each undertaking.
(311)
In setting the amount of the fines to be imposed, the Commission refers to the
principles laid down in its Guidelines on the method of setting fines imposed
pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 397 (hereafter, “the
Guidelines on fines”). Finally, the Commission will apply, as appropriate, the
provisions of the Leniency Notice.
(312)
In this case, it is concluded, on the basis of the facts described in Section 4 and the
assessment in Section 5, that the infringement was committed intentionally or at least
negligently. The infringement consisted of collusive activities concerning the banana
business in the Southern European region, in particular coordination of price strategy
regarding future prices, price levels, price movements and/or price trends, and the
exchange of information on future market conduct regarding prices.
8.3.
Calculation of the fines
8.3.1.
Methodology for setting the amount of the fine
(313)
According to the Guidelines on fines, the basic amount of the fine for each party
results from the addition of an variable amount and an additional amount. The
additional amount is calculated as a proportion of the value of sales of goods or
services to which the infringement relates in a given year (normally, the last year of
the infringement). The variable amount results from a proportion of the value of sales
multiplied by the number of years of the company's participation in the infringement.
The resulting basic amount can then be increased or reduced for each company if
either aggravating or mitigating circumstances are present. The fine may not exceed
10% of the worldwide turnover of an undertaking concerned pursuant to Article 23
of Regulation (EC) No 1/2003. The fine may be reduced in application of the
Leniency Notice, where applicable.
397
EN
OJ C 210, 1.9.2006, p. 2.
88
EN
8.3.2.
The value of sales
(314)
The basic amount of the fine to be imposed on the undertakings concerned is to be
set by reference to the value of sales398, that is, the value of the undertakings' sales of
goods or services to which the infringement directly or indirectly related in the
relevant geographic area in the EEA. While the Commission will normally take the
sales made by the undertakings during the last full business year of their participation
in the infringement399, in this case, in view of the short duration of the infringement
and the fact that it covered parts of two calendar years, it is appropriate to deviate
from that principle. A proxy for annual value of sales (based on the actual value of
sales made by the undertakings during the eight months of their participation in the
infringement from August 2004 to March 2005) will be used as the basis for the
calculation of the basic amount of the fines to be imposed.
(315)
The goods to which the infringement relates in this case are bananas (fresh fruit) both
un-ripened (green) and ripened (yellow) bananas.
(316)
The relevant geographic area covers the three Southern European Member States of
Greece, Italy and Portugal. This case relates to an infringement that is clearly distinct
from the infringement found in Case 39188-Bananas.400
(317)
Chiquita submits in its reply to the Statement of Objections that only the sales of unripened (green) bananas ought to be included in the relevant value of sales to be
taken as a basis by the Commission for the calculation of the basic amount of the
fine. Chiquita's argument rests on the fact that it sold almost exclusively un-ripened
(green) bananas in the Southern European region and hence the infringement related
only to un-ripened (green) bananas. Chiquita's argument cannot be accepted as the
agreement to coordinate prices related to bananas in general (both un-ripened and
ripened bananas), as is apparent from sections 2.1 and 4. Furthermore, while the fact
may be that only limited sales of ripened (yellow) bananas were sold by Chiquita,
that fact is in any case reflected in the value of sales of bananas which serves as a
basis for the calculation of the basic amount of the fine to be imposed.
(318)
The resulting calculation of the proxy for annual value of sales is as follows:
Total relevant turnover from Proxy for annual value of
August 2004 to March 2005 sales (EUR)
(EUR)
Chiquita
127 794 529
191 691 793
Pacific
29 732 872
44 599 308
398
399
400
EN
Point 12 of the Guidelines on fines.
Point 13 of the Guidelines on fines.
This case concerns a separate (single and continuous) infringement in particular since the geographical
scope of the arrangements, the personnel involved, the period of the alleged infringement, the
functioning of the business and the nature of the conduct under investigation in this case are plainly
different from those in Case 39188-Bananas. See also recital (80).
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EN
8.3.3.
Determination of the basic amount of the fine
(319)
The basic amount consists of an amount of up to 30% of a company's relevant sales,
depending on the degree of gravity of the infringement and multiplied by the number
of years of the company's participation in the infringement, and an additional amount
of between 15% and 25% of the value of a company's sales, irrespective of
duration.401
8.3.3.1. Gravity
(320)
The gravity of the infringement determines the level of the value of sales taken into
account in setting the fine. As a general rule, the proportion of the value of sales
taken into account will be set at a level of up to 30%. In order to determine the
specific percentage of the basic amount of the fine, the Commission will have regard
to a number of factors, such as the nature of the infringement, the combined market
share of all the undertakings concerned, the geographic scope of the infringement
and whether or not the infringement has been implemented.402 Those elements are :
Nature
(321)
The addressees of this Decision participated in a single and continuous infringement
of Article 101 of the Treaty, with the single and common anti-competitive objective,
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 parameter.
(322)
Pacific argues, in its reply to the Statement of Objections, that as the Commission
has failed to provide any concise and reliable evidence in support of its objections, it
should not impose any fine on Pacific. Pacific further argues that the conduct
described does not amount to a secret, institutionalised and systematic price fixing
cartel which was conceived, directed and encouraged at the highest levels in the
undertakings concerned. In fact, Pacific claims that neither Mr [...] nor any other
Pacific employee ever engaged in any secret contacts with Chiquita but, instead, met
openly with Mr [...] of Chiquita to discuss legitimate business issues linked to the
operation of the CMO. Pacific states that Mr [...], who did hold a position at the
highest levels of PFCI, did not conceive, direct or encourage any of the alleged
conduct and that Mr [...], who did engage in contacts with Mr [...] of Chiquita, was
both inexperienced in the banana market and held a principally administrative
position and had by no means reached the most senior level of the company
hierarchy. Pacific also argues that the Commission has been unable to provide prima
facie evidence of the alleged conduct impacting negatively on the market in terms of
prices and volumes and therefore the conduct described does not amount to a hardcore cartel infringement.
(323)
Finally, both Pacific and Chiquita state that the Commission must take account of the
regulatory regime set out in Council Regulation (EEC) No 404/93 which affected the
banana industry at the time of the alleged infringement by removing a vital aspect of
competition and creating a high level of transparency, thereby materially affecting
conditions on the market.
401
402
EN
Points 19-26 of the Guidelines on fines.
Points 21-22 of the Guidelines on fines.
90
EN
(324)
Contrary to Pacific's arguments, the contemporaneous evidence in the Commission
file shows, as presented in section 4.2 of this Decision, that Pacific and Chiquita did
in fact engage in an institutionalised and systemic price fixing cartel which was
conceived at the meeting on 28 July 2004 between the high ranking representatives
of the two undertakings, namely Mr [...], then [...] of PFCI and Mr [...], [...] for
South Europe, and Mr [...], [...] for South Europe at Chiquita. The immediate
implementation of the cartel arrangement is shown by the contemporaneous notes by
Mr [...] dated in the first half of August 2004. The implementation of the cartel
arrangement, its systematic and institutionalised nature and the involvement of the
highest levels in each undertaking is further shown by the internal e-mail of Pacific
of 11 April 2005 and an undated table containing Chiquita's prices and covering
weeks 6 of 2005 to 13 of 2005, both of which contain weekly notes reporting on
agreements between Chiquita and Pacific regarding future price behaviour. Those
documents together reveal the almost weekly occurrence of price coordination
between Pacific and Chiquita in the period between February 2005 and April 2005
(week 6/2005 to week 15/2005). The e-mail also shows that Mr [...] reported directly
to Mr [...], [...] of PFCI and [...] of FSL Holdings NV and Firma Leon Van Parys
NV, about the outcome of his illegal contacts with Chiquita. The fact that both the
internal e-mail of 11 April 2005 and the undated table covering Chiquita's price
information for weeks 6/2005 to 13/2005 were found in Mr [...]'s office, in print-out
format and stored in a binder is also of relevance to the question of Mr [...]'s
knowledge and involvement in the cartel arrangement. As for Pacific's argument
about the legitimate content of the contacts between Pacific and Chiquita and the
absence of any secrecy in them, it is recalled that the anti-competitive nature of the
contacts has already been shown in section 5.4.2 and that there is nothing to suggest
that knowledge of such anti-competitive contacts (for example the contents of the
meeting of 28 July 2004 and e-mail of 11 April 2005) would have been kept anything
but secret. With regard to Pacific's argument on the lack of evidence that the
described conduct had any negative impact on prices and volumes, reference is made
to section 5.4.3, in which the impact and effect of the conduct is described.
(325)
It is to be stressed that the infringement, as described in section 4.2, involved the
coordination of price strategy, including future prices, price levels, price movements
and/or price trends and the exchange of information on future market conduct
regarding prices. Such an infringement is by its very nature among the most harmful
restrictions of competition and, in accordance with point 23 of the Guidelines on
fines, the proportion of the value of sales taken into account will generally be set at
the higher end of the scale. The very specific regulatory regime in place at the time
of the infringement should, however, be taken into account in adjusting the basic
amount of the fine for all addressees (see section 8.4.2).
Combined market share
(326)
EN
In 2004, the estimated overall combined market share for Chiquita and Pacific was
50% in Italy, 30% in Portugal and 65-70% in Greece. In 2005, the estimated overall
market share for Chiquita and Pacific was 50% in Italy, 40% in Portugal and 60% in
Greece.
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EN
Geographic scope
(327)
As regards the geographic scope, the cartel covered three Member States, namely
Greece, Italy and Portugal.
Implementation
(328)
As described in recital (233), the arrangements were implemented.
Conclusion on gravity
(329)
Given the specific circumstances of this case and taking into account the criteria
discussed in recitals (321)-(325) relating to the nature of the infringement, the
proportion of the value of sales to be taken into account should be 15% for all
undertakings concerned.
8.3.3.2. Duration
(330)
The infringement started on 28 July 2004 and lasted until 8 April 2005 (see recital
(306)).
(331)
Rather than rounding up periods as suggested in point 24 of the Guidelines on Fines,
the Commission will take into account the actual duration of participation in the
infringement of the undertakings involved in this case on a rounded down monthly
and pro rata basis to take fully into account the duration of the participation for each
undertaking. Hence, as the duration in this case is eight months and 12 days for both
Chiquita and Pacific, the calculation will take into account eight months only. This
leads to a multiplier for duration of 0.66 (2/3 of a full year) for all undertakings
concerned.
8.3.4.
The percentage to be applied for the additional amount
(332)
In addition, irrespective of the duration of the undertakings' participation in the
infringement, the Commission includes in the basic amount a sum of between 15%
and 25% of the value of sales in order to deter undertakings from even entering into
horizontal price-fixing and market-sharing agreements.403
(333)
Given the specific circumstances of this case and taking into account the criteria
discussed section 8.3.3.1, it is concluded that an additional amount of 15% of the
proxy for annual value of sales should be taken into account for all undertakings
concerned.
8.3.5.
Calculation and conclusion on basic amounts
(334)
Based on these criteria , the basic amounts of the fines to be imposed on each
undertaking should therefore be as follows:
Addressees
403
EN
Basic amount (EUR)
Point 25 of the Guidelines on fines.
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EN
Chiquita Brands International, Inc.,
Chiquita Banana Company BV, Chiquita
Italia SpA
47 922 000
FSL Holdings NV, Firma Leon Van Parys
NV, Pacific Fruit Company Italy SpA
11 149 000
8.4.
Adjustments to the basic amounts of the fine
8.4.1.
Aggravating circumstances
(335)
No aggravating circumstances have been found.
8.4.2.
Mitigating circumstances
(336)
In the light of the very particular circumstances in the Commission decision of 15
October 2008 in Case 39188 – Bananas a reduction was applied to the basic amount
of the fines for all parties on the basis that the banana sector was subject to a very
specific regulatory regime and that the type of coordination established in that
decision related to quotation prices.404 The combination of those elements led to the
application of a reduction of 60% to the basic amount of the fines for all parties.
(337)
Both Pacific and Chiquita argue in their replies to the Statement of Objections that
the regulatory regime in place during the relevant period in this case was identical,
with no substantive factual or legal differences, to the regulatory regime identified in
the Commission decision of 15 October 2008 in case 39188 – Bananas. Pacific
further argues that the fact that the alleged conduct in this case is not described as
collusion on "quotation price[s]", as in Case 39188 – Bananas, is immaterial as,
according to Pacific, the alleged conduct "only" involved the discussion of “incorrect
prices” or price trends at most. For those reasons, Pacific and Chiquita request that
"at least the same" or "an equivalent” reduction of the fines as in the Commission
decision of 15 October 2008 in case 39188 – Bananas be granted in this case.405
(338)
As a result of the specific business environment in the bananas sector, there are
common elements in this case and in Case 39188 – Bananas. The regulatory regime
which applied at the time of the infringement in the Commission decision in Case
39188 – Bananas and the one in this case operated according to rules which were to a
large extent identical.
(339)
The type of quotation prices which were established in Case 39188 – Bananas did
not exist in the Southern European region and the price fixing identified in this case
does not limit itself to such quotation prices. Hence, that part of the bundle of
mutually reinforcing elements justifying a mitigating factor of 60 % in the Bananas
decision is not present in this case. Contrary to what Pacific claims, the infringement
in this case did not amount to "much less potentially harmful behaviour than even the
404
405
EN
See recitals 104-115 and 467 of the Commission decision of 15 October 2008 in Case 39188-Bananas.
Section 9.3 of Pacific’s reply to the Statement of Objections and annex E of Chiquita’s reply to the
Statement of Objections.
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EN
discussion of quotation prices or inaccurate prices”.406 On the contrary, there is even
evidence that the collusion in this case included the coordination of prices which
were at levels of actual prices (see for instance recitals (163) and (139)).
(340)
In view of the very particular circumstances of this case, and in the light of the
position taken by the Commission in Case 39188 – Bananas, a reduction of 20%
should be applied to the basic amount of the fines to be imposed on all the
undertakings concerned.
8.4.3.
Conclusion on adjustments of the basic amounts
(341)
Based on this mitigating circumstance, the adjusted basic amounts of the fines to be
imposed on each undertaking should therefore be as follows:
Addressees
Chiquita Brands International, Inc.,
Chiquita Banana Company BV, Chiquita
Italia SpA
38 337 600
FSL Holdings NV, Firma Leon Van Parys
NV, Pacific Fruit Company Italy SpA
8 919 200
8.4.4.
Deterrence
(342)
In determining the amount of the fines, the Commission pays particular attention to
the need to ensure that fines have a sufficiently deterrent effect. To that end, the
Commission may increase the fines to be imposed on undertakings which have a
particularly large turnover beyond the sales of goods or services to which the
infringement relates.407
(343)
In this case, it is not necessary to increase the amount of the fine to be imposed for
the purposes of deterrence..
8.4.5.
Application of the 10% turnover limit
(344)
Article 23(2) of Regulation (EC) No 1/2003 provides that the fine imposed on each
undertaking must not exceed 10% of its total turnover relating to the business year
preceding the date of the Commission decision. The adjusted basic amounts set out
in section 8.4.3 do not exceed 10% of the total turnover for any of the undertakings
concerned.
8.5.
Application of the Leniency Notice
(345)
Chiquita’s leniency application of 8 April 2005 under the Leniency Notice concerned
the business of distribution and marketing of imported bananas as well as pineapples
406
407
EN
Adjusted basic amount (EUR)
Recital 523 of Pacific’s reply to the Statement of Objections.
Point 30 of the Guidelines on fines.
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EN
and other fresh fruit in Europe408 and was registered as Case 39188 – Bananas. Prior
to the 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. On 3 May 2005, Chiquita was granted conditional immunity from fines
under point 8(a) of the Leniency Notice for an alleged secret cartel – as described in
Chiquita's submissions of […]409 - affecting the sale of bananas and pineapples in the
EEA.410 As the conduct under investigation in this case was distinct411 from that in
Case 39188 – Bananas, the original investigation was divided into two cases, namely
Case 39482 – Exotic Fruit and Case 39188 – Bananas. In this 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.
(346)
Conditional immunity under the Leniency Notice means that, at the end of the
administrative procedure, the Commission will grant an undertaking immunity from
fines with regard to any infringement that the Commission may find as a result of its
investigation in connection with the evidence that the undertaking submitted in
relation to the alleged cartel provided that the undertaking abides by the provisions of
the Leniency Notice throughout the administrative procedure.
(347)
In order to qualify for immunity from a fine at the end of the administrative
procedure, the Leniency Notice requires immunity applicants to meet the cumulative
conditions set out in point 11 of the Notice, in addition to the conditions which have
to be met to benefit from conditional immunity under point 8(a). Point 11(a) of the
Leniency Notice lays down the obligation for the immunity applicant to cooperate
fully, on a continuous basis and expeditiously throughout the administrative
procedure, and to provide all evidence that comes into its possession or is available
to it. Accordingly, the benefit of granting leniency can be justified only where the
information provided and, more generally, the conduct of the undertaking concerned
demonstrates genuine cooperation on its part. It follows that immunity applicants
have an obligation to cooperate fully, on a continuous basis and expeditiously. This
includes providing accurate, non-misleading and complete information. 412 Points
11(b) and (c) of the Leniency Notice require the immunity applicant to end its
involvement in the suspected infringement no later than the time at which it submits
evidence under point 8 of the Leniency Notice and not to have taken steps to coerce
other undertakings to participate in the infringement.
(348)
In view of certain declarations made by Chiquita during the proceedings, 413 the
Commission expressed its preliminary view, in the Statement of Objections issued to
408
409
410
411
412
413
EN
[...].
[...].
[...]
This case concerns a separate (single and continuous) infringement in particular since the geographical
scope of the arrangements, the personnel involved, the period of the alleged infringement, the
functioning of the business and the nature of the conduct under investigation in this case are plainly
different from those in Case 39188-Bananas.
Joined Cases C-189/02 P, C-202/02 P, C-205/02 P, C-208/02 P and C-213/02 P Dansk Rørindustri and
Others v Commission [2005] ECR I-5425 paragraphs 394-396 and Case C-301/04 P Commission v
SGL Carbon AG a.o., [2006] ECR, p. I-5915, at paragraphs 68-70.
[...]
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EN
Chiquita, that the infringement to which this Decision relates was not covered by
Chiquita's leniency application of 8 April 2005 and, alternatively, that Chiquita had
not fulfilled its obligations under point 11(a) (obligation to cooperate) and point
11(b) (termination of the infringement at the time of the application) of the Leniency
Notice. Prior to the Statement of Objections, the Commission had sent a state-of-play
letter to Chiquita [...].
(349)
Based on all the arguments put forward by Chiquita, especially after the Statement of
Objections, it is concluded that the infringement established in this Decision is
covered by Chiquita’s immunity application. However, it is recalled that immunity
applicants must endeavour to spell out clearly on what information they base their
allegations when applying for immunity.
(350)
Regarding the duty to end involvement in the infringement no later than at the time
of the immunity application, and taking into account the evidence as well as the
explanations given by Chiquita following the issuing of the Statement of Objections
(see recitals (141)-(142)), it cannot be demonstrated with certainty that the date on
which the last collusive contact involving Chiquita personnel occurred was after the
date of its immunity application of 8 April 2005. Thus, there is no basis to withdraw
immunity for any breach of point 11(b) of the Leniency Notice.
(351)
Regarding the duty to continuously cooperate, contrary to what Chiquita argues in its
reply to the Statement of Objections, 414 it is not sufficient that the immunity
applicant enables the Commission to launch the investigation and thereafter provides
only the information that the Commission explicitly requests. It is the responsibility
of the applicant to come forward with its account of the facts buttressed by evidence
and to demonstrate that it cooperates genuinely, fully, on a continuous basis and
expeditiously. The Commission needs to remain neutral and abstain from leading the
applicant and can hence only present factual questions to the applicant. Chiquita has
nevertheless provided the Commission with several submissions explaining its
involvement in the Southern European banana business, including the collusive
contacts with Pacific. It was also Chiquita's contribution that originally triggered the
Commission's investigation of the business. It is therefore concluded that Chiquita
has met its obligation to continuously cooperate.
(352)
Given the special circumstances of this case as described above, it would not be
justified to withdraw immunity from Chiquita. Since Chiquita has fulfilled the
conditions set out in the Leniency Notice, it should be granted immunity from any
fines that would otherwise have been imposed on it.
8.6.
Conclusion: final amount of individual fines
(353)
The fines to be imposed pursuant to Article 23(2) of Regulation (EC) No 1/2003
should therefore be as follows:
(a)
Chiquita Brands International, Inc., Chiquita Banana Company BV and
Chiquita Italia SpA jointly and severally:
EUR 0
414
EN
See recital 167 of Chiquita’s reply to the Statement of Objections.
96
EN
(b)
FSL Holdings NV, Firma Leon Van Parys NV and Pacific Fruit Company Italy
SpA jointly and severally:
EUR 8 919 000
HAS ADOPTED THIS DECISION:
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 infringement 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
The fines shall be paid in euro, within three months of the date of notification of this Decision, to
the following account held in the name of the European Commission:
Banque et Caisse d'Epargne de l'Etat
1–2, Place de Metz
L-1930 Luxembourg
IBAN: LU02 0019 3155 9887 1000
BIC: BCEELULL
Ref.: European Commission – BUFI / COMP/39482
After the expiry of that period, interest shall automatically be payable at the interest rate applied
by the European Central Bank to its main refinancing operations on the first day of the month in
which this Decision is adopted, plus 3.5 percentage points.
Where an undertaking referred to in Article 1 lodges an appeal, that undertaking shall cover the
fine by the due date by either providing an acceptable bank guarantee or making a provisional
payment of the fine in accordance with Article 85a(1) of Commission Regulation (EC, Euratom)
No 2342/2002.415
415
EN
OJ L 357, 31.12.2002, p. 1.
97
EN
Article 3
The undertakings listed in Article 1 shall immediately bring to an end the infringements referred
to in Article 1 insofar as they have not already done so.
They shall refrain from repeating any act or conduct described in Article 1, and from any act or
conduct having the same or similar object or effect.
Article 4
This Decision is addressed to
Chiquita Brands International, Inc.
250 East Fifth Street
Cincinnati, Ohio 45202
USA
Chiquita Banana Company BV
Schelluinsestraat 46B
4203 NM Gorinchem
The Netherlands
Chiquita Italia SpA
Via Tempio del Cielo, 3
00144 Rome
Italy
FSL Holdings NV
Zeevaartstraat 3
2000 Antwerp
Belgium
Firma Leon Van Parys NV
Zeevaartstraat 3
2000 Antwerp
Belgium
Pacific Fruit Company Italy SpA
Via Benedetto Croce 40
00142 Rome
Italy
This Decision shall be enforceable pursuant to Article 299 of the Treaty.
EN
98
EN
Done at Brussels, 12.10.2011
For the Commission
Joaquín ALMUNIA
Vice-President
EN
99
EN
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