The General Court upholds infringement by object through information exchange and joint liability in banana cases

On14 March 2013, the General Court handed down two decisions, Del Monte v. Commission (Case T-587/08) and Dole v. Commission (Case T-588/08), upholding the Commission's finding of participation in a concerted practice to coordinate quotation prices for bananas. In both Del Monte and Dole, the General Court confirmed a finding of infringement by object through the exchange of pre-pricing information. In Del Monte, the General Court also affirmed a finding of joint liability.

In both Del Monte and Dole, the General Court confirmed a finding that bilateral pre-pricing communications decreased uncertainty surrounding future decisions on the undertakings' quotation prices. The General Court found that the pattern of communication between the undertakings on critical pre-pricing factors, which included the competitors' own private assessments on demand, future quotation prices, and climatic events, in the context of the relatively concentrated market for bananas, rose to the level of infringement by object.

The General Court recalled that an anti-competitive object may be present if the concerted practices directly or indirectly fix prices or other trading conditions, without necessarily finding a direct link between those practices and consumer prices (Case C-8/08, T-Mobile Netherlands and Others). The General Court also found that the presumption that if the undertakings remain in the market, they could not fail to take into account the information exchanged, had not been rebutted (Case C-199/92 P, Hüls v. Commission; Case C-49/92 P, Commission v. Anic Partecipazioni).

Moreover, in Dole, the General Court rejected the argument that "an exchange of information can constitute a restriction of competition by object only if it forms part of broader cartel arrangements" as unfounded in the law.

Therefore, in the banana cases, the General Court signals its willingness to hold pre-pricing communications related to future quotation prices as commercially sensitive information, and their exchange amongst competitors, given the market context, as an infringement by object.

Regarding joint liability, it is noteworthy that although Del Monte had joint control of Weichert, the General Court found that because Del Monte exercised decisive influence over Weichert, they constituted a single economic entity, and were therefore jointly and severally liable. The General Court found that by virtue of owning an 80% interest in Weichert, Del Monte had ability and interest in exercising decisive influence. Examining Del Monte's powers under the partnership agreement and an exclusive distribution agreement with a subsidiary wholly owned by Del Monte, the General Court affirmed that Del Monte exerted such decisive influence.