On 19 March 2015, the European Court of Justice rejected Dole's appeal against the 2013 judgment by the General Court dismissing its appeal against the European Commission's 2008 Bananas decision.

The ECJ issued a useful reminder of the scope of the EU antitrust concept of a "concerted practice", in particular confirming that EU competition law prohibits communications between competitors relating not only to actual prices but also to factors relevant to price-setting, that there is no need for the Commission to show any actual impact on price, and that the communications need not be between those responsible for pricing within their respective companies.

Background

In October 2008, the European Commission found that three banana importers, Chiquita, Dole, and Weichert (which was controlled by Del Monte at the relevant time) had participated in a price-fixing cartel between 2000 and 2002, contrary to Article 101 of theTreaty on the Functioning of the European Union ("TFEU").

The cartel affected eight Member States, where the retail banana market was worth approximately €2.5 billion in 2002. The Commission imposed fines totalling €60 million onDole and WeichertChiquita was granted full immunity as the first to come forward under the Commission's leniency programme (its fine would otherwise have been €83.2 million).

The banana business in the relevant Member States is organised in weekly cycles. On most Thursdays between 2000 and 2002, the importers set and announced their "quotation prices" for the upcoming week. 

On numerous occasions, often on the day before quotation price announcements, the importers held bilateral phone calls. The Commission found that during these calls, the importers disclosed factors relevant to the setting of quotation prices for the forthcoming week and price trends and indications of quotation prices for the forthcoming week before those quotation prices were set.

After quotation prices were announced on a Thursday morning, the importers also formally exchanged their quotation prices bilaterally. The importers were then able to review each other's formal quotation prices in the light of their previous discussions.

Analysis

It is well established that Article 101 prohibits not only formal and informal price-fixing agreements and understandings, but also communications falling short of an agreement. Certain collusive behaviour is so likely to have negative effects on competition that there is no need to show that it has actual effects on the market. Experience shows that such collusion harms consumers. In order to determine whether a restriction of competition is such an "object" restriction, so that it is unnecessary to assess its actual effect, the Commission must assess its objectives and market context.

The ECJ recalled that "each economic operator must determine independently the policy which he intends to adopt on the common market" and that accordingly:

While it is correct to say that this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, none the less, strictly preclude any direct or indirect contact between such operators by which an undertaking may influence the conduct on the market of its actual or potential competitors or disclose to them its decisions or intentions concerning its own conduct on the market where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question.

In this case, Dole argued that the communications between the importers concerned only quotation price trends, and that in any event quotation prices were far removed from actual prices. The ECJ dismissed this argument, however. It noted that a concerted practice may amount to an "object" restriction even though there is no direct connection between that practice and consumer prices.

In any event, in this case, the ECJ observed that:

quotation prices were relevant to the market concerned, since, on the one hand, market signals, market trends or indications as to the intended development of banana prices could be inferred from those quotation prices, which were important for the banana trade and the prices obtained and, on the other, in some transactions the actual prices were directly linked to the quotation prices.

The ECJ also held that it was sufficient for the employees involved in the pre-pricing communications to have participated in the internal pricing meetings. They did not need to have had responsibility for price-setting.  It was permissible for the Commission to conclude that the pre-pricing communications reduced uncertainty as to each importer's conduct and were therefore unlawful.

Comment

The Dole judgment continues a long stream of case-law from the Luxembourg courts that confirms the breadth of Article 101, and provides an important summary of the current state of EU law in this area. Its particular interest lies in its confirmation that the Commission is entitled to assume that even communications on factors relevant to pricing, but that remain some distance removed from market prices or consumer prices, will have an adverse effect on the market and are therefore "object" restrictions.

From that point, the Commission is entitled to assume that competitors will take account of the information exchanged in determining their conduct, and there is no need for it to show an actual effect on competition.  Businesses should therefore avoid any sort of communication with competitors in relation to prices or factors relating even indirectly to prices.