General Court reduced Pacific Fruit's fine for "single, repeated infringement"

On 16 June 2015, the General Court ("GC") reduced a fine on Pacific Fruit in a case concerning alleged collusion with Chiquita on banana prices in Southern Europe. The reduction was granted because the company's participation in the cartel had been interrupted. Also noteworthy is that the GC confirmed the admissibility of evidence obtained from a national tax authority.

The GC annulled the finding of the Commission that Pacific Fruit and Chiquita discussed banana prices on a continuous basis between 28 July 2004 and 8 April 2005. The GC considered that in order to prove the continuous nature of an infringement, the Commission must adduce factual evidence sufficiently proximate in time for it to be reasonably accepted that the infringement continued uninterruptedly between two specific dates. The period that can be considered "sufficiently proximate" depends on the market context. The GC noted that pricing cycles can be particularly relevant. In this case, a period of five months without evidence for the continuation of the infringement was not considered sufficiently proximate, considering that price negotiations in the banana business occur on a weekly basis. Although Chiquita confirmed the continuous nature in its leniency statement, this was not considered sufficient since, if disputed, such statement needed to be supported by other evidence, which was lacking.

The GC qualified the infringement as "single and repeated" – as opposed to the "single and continuous infringement" – given that it consisted of the same undertakings, persons and geographical scope and the infringement had the same objective before and after the interruption. On this basis, the Commission may impose a fine in respect of the whole of the infringement but it may not do so for the period during which the infringement was interrupted. The more limited duration of the infringement led to a reduction of the fine from EUR 8.92 million to EUR 6.69 million.   

With regard to the use by the Commission of documents provided by the Italian tax authority, the GC confirmed that the lawfulness of such transfer is governed by national law. As the evidence in this case was not declared unlawful by a national court, it was admissible. The GC rejected Pacific Fruit's argument that it was unable to rely on the Italian procedural safeguards as they were not informed of the transfer of those documents.