Competition: Pacific Fruit appeals against General Court judgment on Southern Europe banana cartel

On 23 November 2015, details were published of an appeal by FSL Holdings ("FSL"), Firma Léon Van Parys ("LVP"), and Pacific Fruit Company Italy SpA ("PFCI") (together "Pacific Fruit") against a General Court ("GC") judgment on their challenge to the Commission decision on the Southern Europe banana cartel. In said decision the Commission found that Pacific Fruit and Chiquita Brands International Inc. ("Chiquita") (two of the main importers and sellers of bananas in the EU) had coordinated their commercial strategy 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.

In October 2011, the Commission found that Pacific Fruit and Chiquita had breached Article 101 of the Treaty on the Functioning of the European Union ("TFEU"). Chiquita received full immunity from fines under the Commission's Leniency Notice. However, Pacific Fruit were fined EUR 8.9 million. Pacific Fruit appealed this decision, and on 16 June 2015, the GC partly upheld the appeal and reduced the fine to EUR 6.6 million. Pacific Fruit appealed the CG judgment to the European Court of Justice ("CJEU").

In its appeal to the CJEU, Pacific Fruit claims that the GC breached essential procedural requirements and its rights of defense. Pacific Fruit also asserts the GC failed to provide effective judicial protection against a criminal penalty imposed on the appellants by the Commission. Further, Pacific Fruit argues that the GC erred in law by not criticizing the Commission for granting immunity to Chiquita and that the GC misinterpreted the notion of an infringement by object. Source: Case C-469 P, FSL Holdings and others v Commission, Official Journal of the European Union, C 389/20, 23/11/2015

Competition: Further appeal against General Court judgment on pre-stressing steel cartel

On 23 November 2015, details were published of an appeal brought by Westfälische Drahtindustrie GmbH ("WDI"), Westfälische Drahtindustrie Verwaltungsgesellschaft mbH & Co. KG ("WDV") and Pampus Industriebeteiligungen GmbH & Co. KG ("Pampus") (together "appellants") against a General Court ("GC") judgment on their challenge to the Commission's decision on the pre-stressing steel cartel.

In June 2010, the Commission fined 17 pre-stressing steel producers a total of EUR 518.5 million for participation in a long-running price-fixing and market-sharing cartel. The appellants challenged the Commission's decision before the GC. In July 2015, the GC dismissed most of the arguments alleging errors by the Commission in the calculation of the fine imposed; the GC upheld the fines imposed by the Commission.

The appellants have now appealed to the Court of Justice of the European Union ("CJEU") seeking the annulment of the GC's decision. To support their action, the appellants rely on four pleas in law. First, the appellants submit that the GC infringed the system of the allocation of powers and of institutional balance and the need to ensure effective legal protection. According to the appellants, the GC exceeded its jurisdiction and did not examine the contested Commission decision in the case, but rather reached its own independent decision imposing a fine. Second, the appellants claim that the GC misconstrued the relevant date for assessing the factual and legal situation. Third, the appellants submit that the GC infringed their fundamental rights by disregarding the principle of proportionality and the equal treatment requirement. According to the appellants, the GC imposed an inappropriate fine on them, which they could at best pay only at the end of an extremely long period. Finally, as a fourth plea in law, the appellants claim that the GC also infringed their fundamental procedural right to effective legal protection because it took refuge behind the calculations of the fine used by the Commission and the facts presented by the parties. Source: Case C-523/15 P, Westfälische Drahtindustrie GmbH and Others v Commission, Official Journal of the European Union, C 389/21, 23/11/2015

Competition (Finland): Finnish Supreme Administrative Court rules on access to the file in dominance case 

On 18 November 2015, the Finnish Supreme Administrative Court ("SAC") rendered its decision on the confidentiality of information in dominance case regarding predatory pricing in the market for production and wholesale of fresh milk. The proceedings stemmed from the Finnish Competition and Consumer Authority’s ("FCCA") investigation and the subsequent Finnish Market Court’s proceedings regarding the abuse of dominant market position by Valio Oy ("Valio") on the Finnish fresh milk market through predatory pricing. According to Valio, the FCCA had infringed Valio's right of defense by restricting its right of access to certain documents relating to the analysis of income from cream products. The FCCA had restricted Valio's right of access, reasoning that the documents in question contained business secrets of Valio's competitors, namely Arla Ingman Oy Ab ("Arla"), Osuuskunta Satamaito ("Satamaito") and Osuuskunta Maitokolmio ("Maitokolmio"). Valio had access to the public versions of these documents. In June 2012, the FCCA gave its decision on Valio's right of access to the contested documents. According to the FCCA, it would not have been possible to grant broader access to these documents without breaching legal grounds for the confidential treatment of the documents.

Valio appealed the FCCA's decision on right of access to the Helsinki Administrative Court. In October 2013, the Helsinki Administrative Court rejected Valio's appeal and upheld the FCCA's decision. Valio appealed the Administrative Court's decision to the SAC. In its ruling, the SAC upheld the appealed decision partly and agreed that the contested documents contained business secrets of Arla, Satamaito and Maitokolmio. According to the SAC, the most essential business secrets in these documents concerned exact production figures, details of internal profitability accounting and exact grounds for price development. The SAC held that Valio had no right of access to this information. However, as for other parts of the documents which did not constitute such essential business secrets and to which Valio's right of access had nevertheless been restricted, the SAC stated that Valio should be granted access as this information may have influenced the consideration of Valio's case. Accordingly, the SAC overruled the Administrative Court's decision in this respect. Source: The Finnish Supreme Administrative Court's decision of 18 November 2015, Dnro 3348/2015 (in Finnish)

In addition, kindly note the following merger control decisions by the Commission which are published on the website of the Commission’s Directorate-General for Competition:

  • Commission approves acquisition of Solina by Ardian France
  • Commission approves acquisition of joint control over combined heat and power plant in Lithuania by Fortum and Lietuvos Energija
  • Commission approves acquisition of Bayer's diabetes care business by Panasonic Healthcare
  • Commission approves acquisition of Rue du Commerce by Carrefour
  • Commission approves acquisition of Broadcom by Avago
  • Commission approves acquisition of Autodis by Bain Capital
  • Commission approves acquisition of joint control of Bonus-Pensionskassen by Generali and Zurich
  • Commission approves acquisition of Stadco by Magna
  • Commission approves acquisition of PA Consulting by Carlyle