On 19 March 2015, the European Court of Justice (ECJ) handed down a significant judgment on the application of EU competition law to information exchange between competitors. The case was an appeal from the European Commission’s 2008 decision to fine banana importers Dole, Weichert and Del Monte a total of €60.3 million for participating in a cartel (established as a result of information exchange) for bananas in northern Europe.

The ECJ agreed with the EC that the cartelists' communications before setting the quotation prices for bananas reduced uncertainty for each of the participants as to the conduct of their competitors. This had the objective of creating competitive conditions that did not correspond to the normal conditions on the market without such collusive contacts, and therefore gave rise to a cartel on the basis of a “concerted practice” established between them.

The EC welcomed the judgment, which also confirmed that a concerted practice may be anti-competitive even though there is no direct connection between the practice and consumer prices.

The case is a reminder of the risks of engaging in private exchanges of commercially sensitive information, particularly if this is forward-looking. This type of activity is seen as a very serious infringement of competition law by the EC and national regulators, a position now fully supported by the EU’s highest court.