Reports of Cases

OPINION OF ADVOCATE GENERAL

KOKOTT
delivered on 11 December 2014 1

Case C-286/13 P

Dole Food Company, Inc.

Dole Fresh Fruit Europe OHG, formerly Dole Germany OHG
v

European Commission

(Appeals — Competition — Cartels — Concerted practices — European banana market —

Quotation prices — Market structure — Calculation of market shares — Green bananas and yellow
bananas — Restriction of competition by object — Conduct of the judicial proceedings at
first instance)

Table of contents

I – Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II – Background to the legal dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III – Procedure before the Court and forms of order sought by the parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

IV – Assessment of the appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A – First ground of appeal: procedural errors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

1. The admissibility of the arguments advanced by the Commission at first instance (first
part of the first ground of appeal) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

2. The admissibility of the arguments advanced by Dole at first instance (second and third
parts of the first ground of appeal) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

a) Production of a document at the hearing (second part of the first ground of appeal) . 7

b) The inadmissibility of an annex to Dole’s reply (third part of the first ground of
appeal) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

c) Interim conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1 — Original language: German.

EN
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3. The principle of equality of arms (fourth part of the first ground of appeal) . . . . . . . . . . . . . 9

4. The allegation of the inadequate establishment of the facts by the General Court (fifth
part of the first ground of appeal) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

B – Second ground of appeal: distortion of facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

C – Third ground of appeal: ‘inadequate assessment of the evidence’ by the General Court . . . . . . 13

1. The market structure and market position of the undertakings involved — the
significance of yellow and green bananas in the calculation of the market shares (first
part of the third ground of appeal) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

2. The description of the exchange of information between the participants in the cartel
(second, third and fourth parts of the third ground of appeal) . . . . . . . . . . . . . . . . . . . . . . . . . . 16

a) The requirements governing the statement of reasons for the contested decision
(second and third parts of the third ground of appeal) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

b) Dole’s argument that the employees involved in the exchange of information were
not themselves responsible for the setting of quotation prices (fourth part of the
third ground of appeal) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

3. The concept of a ‘restriction of competition by object’ (fifth part of the third ground of
appeal) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

a) The relevant legal criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

b) The application of the relevant legal criteria to the individual case . . . . . . . . . . . . . . . . . . 20

– The nature of the exchange of information and its subject-matter . . . . . . . . . . . . . . . 20

– The frequency and regularity of the exchange of information . . . . . . . . . . . . . . . . . . . . 22

– The market structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

– Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

4. Interim conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

D – Fourth ground of appeal: calculation of the fine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

1. First part of the fourth ground of appeal: consideration of the sales of Dole subsidiaries
not involved in the cartel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

2. Second part of the fourth ground of appeal: consideration of the same sales twice . . . . . . . 24

E– Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

V – Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

VI – Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

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I – Introduction

1. Hardly any other fruit has been the source over the years of as acrimonious and diverse legal
disputes at European level as the banana. 2 In the present case, the Court is once again required to
consider a number of issues of competition law pertaining to bananas, just as it did more than 30 years
ago. 3

2. Those questions are raised in the context of a ‘banana cartel’, the members of which have been
found guilty of anti-competitive concerted practices in several Member States of the European Union.
By decision of 15 October 2008, 4 the European Commission imposed fines amounting to millions of
euros on certain participants in the cartel for infringement of Article 81 EC (now Article 101 TFEU).
Dole Food Company, Inc. and its subsidiary Dole Fresh Fruit Europe OHG 5 were unsuccessful at first
instance with their action brought against that decision and are now pursuing their request for legal
protection before the Court of Justice in its appellate jurisdiction.

3. Of central interest now is the question whether yellow and green bananas may be ‘lumped together’
where an assessment of the market structure and the position and conduct of the undertakings
involved on the market concerned is necessary. This issue arises time and time again in completely
different contexts and runs like a common thread through the appeal. Dole submits that the General
Court did not give sufficient consideration to its arguments advanced in this regard against the
Commission’s decision and that it distorted the facts. In addition, Dole complains of errors of law in
relation to the concept of a restriction of competition by object and of various procedural errors
which it claims the General Court made in its judgment of 14 March 2013 (Case T-588/08). 6

4. The present proceedings in Case C-286/13 P are closely connected with the appeal proceedings in
Joined Cases C-293/13 P and C-294/13 P, in which I am likewise delivering my Opinion today.
However, with the exception of the concept of a restriction of competition by object, the points of law
raised in those cases concern completely different legal issues from those to be settled in the present
proceedings.

II – Background to the legal dispute

5. The subject-matter of the administrative procedure before the Commission was a concerted practice
involving several undertakings active in the banana trade (‘the undertakings involved’) — including
Dole 7 — by which they coordinated their quotation prices for bananas marketed in Northern Europe
in the years 2000, 2001 and 2002.

6. According to the findings of the General Court, bananas are normally transported green by ship
from Latin American ports to Northern Europe, where they usually arrive once a week. 8

2 — See, in particular, the judgments in United Brands and United Brands Continentaal v Commission, 27/76, EU:C:1978:22, on the abuse of a
dominant position; Cooperativa Co-Frutta, 193/85, EU:C:1987:210, on a tax on the consumption of bananas; Germany v Council, C-280/93,
EU:C:1994:367, on the legality of the common organisation of the market in bananas; Atlanta Fruchthandelsgesellschaft and Others (I),
C-465/93, EU:C:1995:369, on questions of interim legal protection before national courts; Van Parys, C-377/02, EU:C:2005:121, on the
question of the ability to review acts of EU law in the light of WTO law; and FIAMM and Others v Council and Commission, C-120/06 P
and C-121/06 P, EU:C:2008:476, on the exclusion of rights to compensation where the Union institutions have acted lawfully.
3 — From the perspective of competition law, the issue of bananas occupied the Court as early as the 1970s in United Brands and United Brands
Continentaal v Commission, EU:C:1978:22.
4 — Commission Decision C(2008) 5955 final of 15 October 2008 relating to a proceeding under Article 81 [EC] (Case COMP/39.188 — Bananas,
summarised in OJ 2009 C 189, p. 12), ‘the contested decision’.
5 — Referred to jointly in the following as ‘Dole’ or ‘the appellants’. Dole Fresh Fruit Europe at times traded under the name Dole Germany; it
was under that name that it appeared as an applicant alongside Dole in the proceedings at first instance.
6 — Dole Food and Dole Germany v Commission, T-588/08, EU:T:2013:130.
7 — In addition to Dole, not least Chiquita and Internationale Fruchtimport Gesellschaft Weichert, a company affiliated to Del Monte, were
likewise involved in the concerted practices.
8 — See, in this regard and in relation to what follows, paragraphs 8 to 23 of the judgment under appeal.

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7. The bananas are either delivered green directly to their European buyers or ripened and then
delivered approximately one week later as yellow bananas. Ripening can be carried out by the
importer or on his behalf or be organised by the buyer. Importers’ customers are generally ripeners or
retail chains.

8. During the relevant period, the prices of those bananas were fixed in Northern Europe at weekly
intervals on the basis of quotation prices for green bananas. The quotation price for yellow bananas
was normally calculated on the basis of the quotation price for green bananas plus a ripening fee. The
prices paid by retailers and distributors (known as ‘actual prices’ or ‘transaction prices’) were then
based either on negotiations taking place on a weekly basis, normally on the Thursday afternoon or
Friday, or on supply contracts with pre-established pricing formulae.

9. The undertakings involved engaged, first, in bilateral pre-pricing communications during which
factors relevant to the weekly setting of quotation prices were discussed, price trends were discussed or
disclosed, or indications of expected quotation prices for the weeks ahead were given. Those
communications took place before the undertakings involved set their quotation prices, usually on
Wednesdays, and all related to future quotation prices. The aforesaid bilateral communications were
designed to reduce uncertainty as to the conduct of the undertakings with respect to the quotation
prices to be set by them on Thursday morning.

10. In addition, after setting their quotation prices on Thursday morning, the undertakings involved
exchanged their quotation prices bilaterally. That exchange of information enabled them to monitor
the individual pricing decisions in the light of the previous pre-pricing communications and
reinforced their cooperation.

11. The quotation prices in question served at least as market signals, market trends and/or indications
as to the intended development of banana prices. In some transactions, moreover, prices were directly
linked to quotation prices on the basis of contractually agreed pricing formulae.

12. The information received from competitors was necessarily taken into account by the undertakings
involved when determining their conduct on the market; Chiquita and Dole even expressly admitted to
having done so.

13. On 8 April 2005, relying on the 2002 Leniency Notice, 9 Chiquita submitted an application for
leniency to the Commission. After carrying out inspections at various undertakings, inter alia at the
premises of Dole Fresh Fruit Europe, and sending several requests for information, on 20 July 2007
the Commission sent a statement of objections to numerous undertakings active on the market for
bananas. In the further course of the administrative procedure, the undertakings concerned were
granted access to the Commission’s file, and the submissions of those undertakings were heard from 4
to 6 February 2008. On 15 October 2008, the Commission finally adopted the contested decision.

14. In the contested decision, the Commission held that several undertakings, including Dole, had
infringed Article 81 EC by participating in a concerted practice by which they coordinated quotation
prices for bananas. From a geographical perspective, that infringement covered Austria, Belgium,
Denmark, Finland, Germany, Luxembourg, the Netherlands and Sweden. 10 The Commission found
Dole to have participated in the infringement over the period from 1 January 2000 to 31 December
2002. 11

9 — Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).
10 — Article 1 of the contested decision.
11 — Article 1(e) and (f) of the contested decision.

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15. For their participation in the infringement, in the contested decision the Commission imposed
fines on several undertakings involved. The Commission imposed on the undertaking Dole, in the
form of the companies Dole Food and Dole Fresh Fruit Europe, jointly and severally, a fine in the
amount of EUR 45.6 million. 12

16. Several of the addressees of the contested decision sought legal protection at first instance by way
of actions for annulment before the General Court. The action for annulment brought by Dole Food
Company and Dole Germany on 24 December 2008 was dismissed in its entirety by the General
Court on 14 March 2013 by the judgment under appeal and the applicants were ordered to pay the
costs.

III – Procedure before the Court and forms of order sought by the parties

17. By written pleading of 24 May 2013, Dole Food and Dole Fresh Fruit Europe jointly lodged the
present appeal against the judgment of the General Court. They claim that the Court should:

— set aside in whole or in part the judgment under appeal, in so far as the appellants’ action was
dismissed;

— annul in whole or in part the contested decision in so far as it is related to the appellants;

— cancel or reduce the fine imposed on the appellants, also on the basis of the unlimited jurisdiction
provided for in Article 261 TFEU;

— in the alternative, refer the case back to the General Court for determination in accordance with
the judgment of the Court of Justice;

in addition,

— order the Commission to pay the costs of these proceedings and of the proceedings before the
General Court.

18. The Commission, for its part, contends that the Court should:

— dismiss the appeal;

— in the alternative, dismiss the action for annulment;

and

— order the appellants to pay the costs of the appeal and, in the alternative, the costs of the action for
annulment.

19. The appeal was examined before the Court of Justice on the basis of the written documents and,
on 8 October 2014, at a hearing.

IV – Assessment of the appeal

20. The numerous objections raised by Dole against the judgment under appeal form the subject of a
total of four grounds of appeal, which I will now discuss in turn.

12 — Article 2(b) of the contested decision.

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A – First ground of appeal: procedural errors

21. By the first ground of appeal, which is subdivided into five parts, Dole claims that the General
Court committed a number of procedural errors when carrying out its review of the contested
decision.

1. The admissibility of the arguments advanced by the Commission at first instance (first part of the
first ground of appeal)

22. First of all, Dole claims that the General Court wrongly allowed the Commission to address in the
judicial proceedings, for the first time, evidence contained in its administrative file that contradicted
the findings made in the contested decision. By so doing, the General Court infringed the
requirements governing the statement of reasons for legal acts of the European Union pursuant to
Article 253 EC in conjunction with the prohibition on the late submission of pleas in law and
arguments laid down in Article 48(2) of its Rules of Procedure.

23. The background to this objection is Dole’s argument that its own quotation prices and those of
Chiquita did not relate to the same calendar weeks and thus concerned bananas which were not in
competition with each other at the retail level. 13 According to Dole, the Commission gave
consideration to this argument for the first time in the procedure before the General Court, even
though the evidence in the administrative file would have given it cause to make findings in this
regard as early as in the contested decision.

24. According to the findings of the General Court, which are not called into question by the present
appeal, Dole’s argument about the lack of competition at the retail level between its own bananas and
those of Chiquita was put forward not during the administrative procedure but only in the course of
the procedure before the General Court. 14

25. In those circumstances, it goes without saying that the General Court had to give the Commission
the opportunity in the course of the proceedings at first instance to respond to this argument advanced
by Dole for the first time in the application. An infringement of Article 48(2) of the Rules of Procedure
of the General Court is thus precluded from the outset, 15 since in court proceedings the Commission,
like any other party, has a right to an adversarial hearing. 16

26. The Commission’s right to an adversarial procedure must, however, be balanced appropriately
against the right of the undertakings concerned to a fair procedure and effective legal protection
(Article 47 of the Charter of Fundamental Rights). 17 Accordingly, although the Commission may, in
the proceeding before the General Court, explain in more detail in its defence the reasons for the
decision at issue, the Commission may not introduce completely new grounds for the decision at

13 — See paragraph 119 of the judgment under appeal.

14 — Paragraphs 128 to 132 of the judgment under appeal.
15 — See, to this effect, Alliance One International and Standard Commercial Tobacco v Commission, C-628/10 P and C-14/11 P, EU:C:2012:479,
paragraph 58.
16 — Commission v Ireland and Others, C-89/08 P, EU:C:2009:742, paragraph 53; see, to the same effect, Review of M v EMEA, C-197/09 RX-II,
EU:C:2009:804, paragraph 42.
17 — See my Opinion in Alliance One International and Standard Commercial Tobacco v Commission, EU:C:2012:11, point 110.

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issue in those proceedings. 18 For the original lack of reasons cannot be cured by enabling the person
concerned to learn of those reasons during proceedings before the European Union judicature. 19 This
prohibition of adding grounds ‘after the event’ before a court is particularly strict in criminal
proceedings and in quasi-criminal proceedings such as cartel proceedings. 20

27. In the present case, the contested decision clearly and unambiguously sets out that, in the view of
the Commission, the quotation prices of the undertakings involved served at least as market signals,
market trends and/or indications as to the intended development of banana prices and, moreover, in
some transactions, acquired significance on account of contractually agreed pricing formulae. 21

28. It is clear from this statement of grounds for the contested decision on its own that, in the view of
the Commission, concerted practices in relation to quotation prices were capable in the individual case
in question of having an impact on the banana market irrespective of whether or not the actual
products of the undertakings involved were in direct competition with one another at the retail level.

29. The General Court therefore rightly found that the statement of grounds for the contested decision
satisfied the requirements laid down in Article 253 EC (now the second paragraph of Article 296
TFEU) and that the additional submissions made by the Commission in the proceedings at first
instance, which were prompted solely by the argument advanced by Dole in its application, did not in
some way serve to provide a statement of grounds for the contested decision after the fact but were
rather simply intended as a defence against the claims made and to offer explanations. 22

30. All in all, the first part of the first ground of appeal is thus unfounded.

2. The admissibility of the arguments advanced by Dole at first instance (second and third parts of the
first ground of appeal)

31. Next, Dole complains that the General Court wrongly declared two of the documents produced by
it to be inadmissible and disregarded them.

a) Production of a document at the hearing (second part of the first ground of appeal)

32. First, Dole complains of a procedural error, namely that the General Court refused it leave to
produce a document at the hearing which Dole intended to use to rebut allegedly new claims made
by the Commission in its rejoinder. 23

33. The document in question was an extract from the administrative file which Dole — by its own
admission — wanted to use to demonstrate that the ‘Aldi price’ is relevant only to yellow bananas,
and not to green bananas, since it relates to the bananas to be purchased by Aldi two weeks later. By
these means, Dole wanted to refute the argument allegedly raised by the Commission in its rejoinder to
the effect that the Aldi price is likewise relevant to the pricing of green bananas.

18 — Stora Kopparbergs Bergslags v Commission, C-286/98 P, EU:C:2000:630, paragraph 61; see, as earlier judgments to the same effect, Präsident
Ruhrkohlen-Verkaufsgesellschaft and Others v High Authority, 36/59 to 38/59 and 40/59, EU:C:1960:36, in particular 439 and 440, and
Picciolo v Parliament, 111/83, EU:C:1984:200, paragraph 22.
19 — Michel v Parliament, 195/80, EU:C:1981:284, paragraph 22; Dansk Rørindustri and Others v Commission, C-189/02 P, C-202/02 P,
C-205/02 P to C-208/02 P and C-213/02 P, EU:C:2005:408, paragraph 463; Elf Aquitaine v Commission, C-521/09 P, EU:C:2011:620,
paragraph 149; and Alliance One International and Standard Commercial Tobacco v Commission, EU:C:2012:479, paragraph 74.
20 — For criminal law in the strict sense, see E and F, C-550/09, EU:C:2010:382, paragraph 59; for the quasi-criminal field — in this case antitrust
law — see Dansk Rørindustri and Others v Commission, EU:C:2005:408, paragraph 463, and Elf Aquitaine v Commission, EU:C:2011:620,
paragraph 149.
21 — Paragraph 19 of the judgment under appeal and recital 115 of the contested decision.
22 — Paragraphs 133 to 135 of the judgment under appeal.
23 — Paragraphs 40 to 48 of the judgment under appeal.

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34. An applicant in proceedings at first instance is, in principle, at liberty at the hearing before the
General Court to respond to the defendant’s written submissions contained in its last document, the
rejoinder. If that document were to contain new elements, the applicant could not categorically be
refused leave to produce additional evidence to rebut those submissions, not even at this late stage of
the procedure.

35. This was not, however, the case here.

36. It must be borne in mind, first, that the Aldi price had already formed part of the subject-matter of
the administrative procedure and of the contested decision. 24 In addition, as evidenced by the court
file, the scope and significance of the Aldi price were, from the outset, a matter of debate between the
parties at the written stage of the first-instance proceedings. This was therefore by no means a new
aspect which had been introduced into the proceedings solely by the Commission’s rejoinder.

37. Thus, if Dole attached importance to setting right the Commission’s submissions regarding the
Aldi price and, to that end, to relying on documents in the administrative procedure, it would have
had sufficient opportunity to do so as early as in the written stage of the first-instance proceedings. In
particular, as early as in its application, and at the latest in its reply, Dole could have pointed to the fact
that the Aldi price related to the bananas to be purchased two weeks later.

38. Secondly, it must be pointed out that it was in fact Dole which stated in its application at first
instance that Aldi’s purchase price for yellow bananas served as a reference price for all purchasers of
bananas in Northern Europe, irrespective of whether they purchased green or yellow bananas. 25

39. In the light of those facts, Dole cannot seriously claim that it wanted to rectify at the hearing an —
allegedly incorrect — assertion made by the Commission. It was rather an attempt, under the pretext
of such a rectification, to put forward new pleas in law, which also contradicted Dole’s own
submissions advanced in the earlier written procedure. Such tactical manoeuvres are precluded by
Article 48 of the Rules of Procedure of the General Court.

40. The General Court was therefore completely right to disregard the document produced by Dole at
the hearing at first instance. 26

b) The inadmissibility of an annex to Dole’s reply (third part of the first ground of appeal)

41. Secondly, Dole submits that the General Court erred in law by finding that Annex C 7 to its reply
at first instance was inadmissible. This objection is directed against paragraphs 460 to 470 of the
judgment under appeal, in which that annex is in fact rejected by the General Court as ‘inadmissible’.

42. Dole intended to use that Annex C 7 in the proceedings at first instance to argue that the
Commission had taken some of Dole’s statements during the administrative procedure out of context.

43. A glance at the court file reveals that Dole’s reply does not contain any explanations whatsoever as
to which of its statements made during the administrative procedure are concerned and to what extent
those statements were misinterpreted by the Commission. Substantiated submissions in this regard can
be found in Annex C 7 only.

24 — Paragraph 14 of the judgment under appeal and recital 104 of the contested decision.
25 — In the language of the case: ‘… Aldi’s pricing for yellow bananas served as a reference price for all purchasers of bananas, whether green or
yellow’ (end of paragraph 47 of Dole’s application in Case T-588/08; see also end of paragraph 46 of that application).
26 — In paragraph 48 of the judgment under appeal, the document is somewhat unusually ‘declared inadmissible’.

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44. Dole thus disregarded the procedural principle that the arguments of the parties must be set out in
their written pleadings and that the annexes to those pleadings perform merely an evidential and
ancillary purpose. 27 Under that principle, a general reference to other documents, even those annexed
to the application, cannot make up for the absence of the essential arguments in law which must
appear in the particular pleading itself. 28 It is not for the General Court to seek and identify in the
annexes the pleas and arguments on which it may consider the action to be based. 29

45. The General Court therefore quite rightly refused to consider the content of Annex C 7 in the
present case.

c) Interim conclusion

46. The second and third parts of the first ground of appeal are therefore likewise unfounded.

3. The principle of equality of arms (fourth part of the first ground of appeal)

47. In the fourth part of the first ground of appeal, Dole argues that the General Court breached the
principle of equality of arms by not allowing evidence to be adduced by Dole in the proceedings at
first instance whilst permitting the Commission to advance new pleas and arguments.

48. As a corollary of the requirement of a fair hearing before the Courts of the European Union, great
importance is undoubtedly attached to the principle of equality of arms. It implies that each party must
be afforded a reasonable opportunity to present his case, including his evidence, under conditions that
do not place him at a substantial disadvantage vis-à-vis his opponent. 30

49. However, in the present case, with their complaint of an alleged infringement of the principle of
equality of arms the appellants do not advance a substantiated line of argument from which a
procedural disadvantage of any kind — and certainly not a substantial disadvantage — may be
deduced on the part of Dole vis-à-vis the Commission in the proceedings at first instance.

50. Rather Dole justifies its complaint simply by a general reference to its submissions in the first,
second and third parts of the first ground of appeal. In other words, this fourth part of the first
ground of appeal stands or falls alongside the three previous ones.

51. Since the first, second and third parts of the first ground of appeal must be rejected, this fourth
part based on the principle of equality of arms likewise cannot succeed.

27 — Dansk Rørindustri and Others v Commission, EU:C:2005:408, paragraphs 97 and 100.

28 — Versalis v Commission, C-511/11 P, EU:C:2013:386, paragraph 115, and MasterCard and Others v Commission, C-382/12 P, EU:C:2014:2201,
paragraph 40.
29 — Dansk Rørindustri and Others v Commission, EU:C:2005:408, paragraphs 98 and 100, and MasterCard and Others v Commission,
EU:C:2014:2201, paragraph 41.
30 — Sweden v API and Commission, C-514/07 P, C-528/07 P and C-532/07 P, EU:C:2010:541, paragraph 88, and Otis and Others, C-199/11,
EU:C:2012:684, paragraph 71.

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4. The allegation of the inadequate establishment of the facts by the General Court (fifth part of the
first ground of appeal)

52. Lastly, by the fifth part of this first ground of appeal, Dole claims that the General Court failed to
establish the facts properly on the basis of Articles 64 and 65 of its Rules of Procedure. Dole alleges
that the error of law consists in the fact that the General Court simply put oral questions and did not
adopt any measures of organisation of procedure or measures of inquiry, even though it was ‘clearly
confused’ in relation to certain decisive facts. Thus, in the appellants’ view, the General Court
breached both the principles governing the taking of evidence and its obligation to establish the facts
correctly and, at the same time, infringed Dole’s rights of defence.

53. It should be noted first of all that it is incumbent upon the appellants to indicate precisely in their
appeal the contested elements of the judgment under appeal as well as the legal arguments specifically
advanced in support of their objections. 31 An appeal lacking any coherent structure which simply
makes general statements and contains no specific indications as to the points of the judgment under
appeal which may be vitiated by an error of law must be dismissed as manifestly inadmissible. 32

54. In view of the extremely vague nature of Dole’s argument, I have serious doubts as to whether the
fifth part of the first ground of appeal may be regarded as admissible at all, since the appeal contains
very little more than a cryptic reference to ‘confusion’ on the part of the General Court regarding the
‘facts surrounding the nature of the quotation prices’. The precise nature of that alleged ‘confusion’ is
not explained nor is any indication given whatsoever as to the parts of the judgment under appeal in
which that confusion is meant to have specifically manifested itself. 33

55. However, regardless of the foregoing, it must in any event be noted that, according to
well-established case-law, the General Court is the sole judge of any need to supplement the
information available to it concerning the cases before it. The question whether the procedural
documents before it are convincing is a matter to be appraised by it alone, which, again according to
well-established case-law, is not subject to review by the Court of Justice, unless the facts or evidence
have been distorted. 34

56. The fact referred to by Dole that the General Court put numerous questions to the parties at the
hearing cannot seriously be regarded as negligence on the part of the General Court in its
establishment of the facts. On the contrary, it may be concluded from the intensive questioning of the
parties that the General Court dealt extremely conscientiously with the details of the subject-matter of
the proceedings. Furthermore, the questioning of the parties is one of the options provided for in the
rules of procedure, for example with a view to clearing up any existing uncertainties. 35 The results of
such questioning can indeed render measures of organisation of procedure or the formal taking of
evidence superfluous.

31 — Telefónica and Telefónica de España v Commission, C-295/12 P, EU:C:2014:2062, paragraph 29, and MasterCard and Others v Commission,
EU:C:2014:2201, paragraphs 151 and 215.
32 — Telefónica and Telefónica de España v Commission, EU:C:2014:2062, paragraph 30.
33 — The allegation of the distortion of facts, an allegation made simply in passing, is not clearly explained by Dole in the context of this fifth
part of the first ground of appeal; rather Dole simply makes reference to the second ground of appeal. I will therefore likewise confine
myself to considering this question in the context of the second ground of appeal (see below, points 61 to 70 of this Opinion).
34 — Ismeri Europa v Court of Auditors, C-315/99 P, EU:C:2001:391, paragraph 19; Der Grüne Punkt — Duales System Deutschland v
Commission, C-385/07 P, EU:C:2009:456, paragraph 163; and E.ON Energie v Commission, C-89/11 P, EU:C:2012:738, paragraph 115. See, to
the same effect, Viega v Commission, C-276/11 P, EU:C:2013:163, paragraph 39.
35 — First sentence of the first paragraph of Article 24 in conjunction with the first paragraph of Article 53 of the Statute of the Court of Justice.

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57. Moreover, it must be borne in mind that, in competition cases, the procedure before the courts of
the European Union is based on the principle that the parties determine the facts and evidence
forming the basis for a decision. 36 If Dole had been under the impression in the first-instance
proceedings that measures of organisation of procedure or the taking of evidence were necessary, it
was at liberty to make specific requests in that regard to the General Court. 37 However, as the
appellants had to concede at the hearing before the Court of Justice, at no point in the proceedings at
first instance did Dole make any requests of that kind, even though it is wholly undisputed that it had
sufficient opportunity to do so. Under these circumstances, Dole can hardly now, at the appeal stage,
make the allegation that the General Court failed to fulfil its duties as regards the appraisal of the
facts. 38

58. Generally speaking, in a legal dispute relating to a cartel case, the General Court is not required to
undertake of its own motion a new and comprehensive investigation of the file. 39 Only in very
exceptional cases can it be assumed that the broad discretion enjoyed by the General Court in
assessing which evidence is appropriate and necessary in order to prove a certain fact hardens into a
duty to take further evidence on its own initiative, even if none of the parties have made a request to
this effect, especially where, as is the case here, the parties are large undertakings with some experience
in competition matters and are represented by specialist lawyers. 40

59. In the present case, the appellants have not advanced any particular facts from which a duty on the
part of the General Court to take evidence of its own motion may, exceptionally, be inferred. They
were unable to point to any such facts even in response to my explicit question.

60. The fifth part of the first ground of appeal is thus likewise unsuccessful, meaning that this ground
of appeal must be rejected in its entirety.

B – Second ground of appeal: distortion of facts

61. By its second ground of appeal, Dole claims that the General Court distorted a series of facts which
are relevant to the correct assessment of the infringement in its legal and economic context. This
ground of appeal is directed against paragraphs 152, 182, 184 and 232 of the judgment under appeal.

62. More specifically, this ground of appeal essentially raises three questions: first, whether the General
Court incorrectly treated quotation prices 41 as equivalent to price quotes; 42 secondly, whether the
General Court wrongly assumed that Dole used a quotation price for yellow bananas; and thirdly,
whether the quotation prices for green and yellow bananas were so closely connected to one another
on an industry-wide scale that they could be regarded as convertible.

36 — Chalkor v Commission, C-386/10 P, EU:C:2011:815, paragraphs 64 and 66; Schindler Holding and Others v Commission, C-501/11 P,
EU:C:2013:522, paragraph 46; and Siemens v Commission, C-239/11 P, C-489/11 P and C-498/11 P, EU:C:2013:866, paragraph 321. In
addition, see also my Opinion in Schindler Holding and Others v Commission, EU:C:2013:248, point 47, and my Opinion in Nexans and
Nexans France v Commission, C-37/13 P, EU:C:2014:223, point 87.
37 — See, to the same effect, Siemens v Commission, EU:C:2013:866, paragraph 322.
38 — Schindler Holding and Others v Commission, EU:C:2013:522, paragraph 46, and Viega v Commission, EU:C:2013:163, paragraphs 41 and 42.
39 — Chalkor v Commission, EU:C:2011:815, paragraph 66; Kone and Others v Commission, C-510/11 P, EU:C:2013:696, paragraph 32; and
Telefónica and Telefónica de España v Commission, EU:C:2014:2062, paragraph 55.
40 — See, in this regard, my Opinion in Schindler Holding and Others v Commission, EU:C:2013:248, point 51, and my Opinion in Nexans and
Nexans France v Commission, EU:C:2014:223, points 87 and 88.
41 — In the language of the case (English): ‘quotation prices’; in the language of the deliberations (French): ‘prix de référence’.
42 — In the language of the case: ‘price quotes’; in the language of the deliberations: ‘offres de prix’. The German translation of the judgment
under appeal renders ‘price quotes’ sometimes by the words ‘angebotene Preise’ and sometimes by the term ‘Preisnotierungen’, with the
latter seeming somewhat far-fetched in this context.

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63. First of all, it should be pointed out that a finding of a distortion of facts or evidence is subject to
strict requirements. Such distortion exists only where, without recourse to new evidence, the
assessment of the existing evidence is manifestly incorrect. 43

64. There is nothing in Dole’s argument which would point to a manifestly incorrect assessment of
facts or evidence.

65. With regard, first, to the alleged treatment of quotation prices as the same as price quotes in
paragraphs 152, 182, 184 and 232 of the judgment under appeal, this terminology is not even used in
all those passages of the judgment in any case. The words ‘quotation price’ appear in paragraph 182
only, whereas reference is made in paragraph 152 simply to a ‘yellow quote’, 44 in paragraph 184 to a
‘yellow price’ 45 and, in turn, in paragraph 232 to a ‘yellow price’ and a ‘green price’. At no point in the
abovementioned passages of the judgment under appeal does the General Court equate quotation
prices with price quotes, nor are quotation prices treated as equivalent to prices actually paid. Dole’s
allegation to that effect is unfounded.

66. Secondly, as regards the question of Dole’s alleged use of a quotation price for yellow bananas, it
should be noted in any case that the General Court used the term ‘yellow quotation price’ in
connection with Dole in just one passage of the judgment under appeal, that is to say in
paragraph 182 thereof. That reference is more likely to be an editorial mistake than a manifestly
incorrect assessment of the facts. In any event, Dole’s argument does not make plain the extent to
which specifically this possible imprecision in the wording of paragraph 182 is meant to have had an
impact on the General Court’s appraisal of the facts for the purposes of competitive assessment and,
ultimately, on the operative part of the judgment under appeal. In the absence of anything specific to
that effect, there are no grounds for setting aside the judgment under appeal, even if a distortion of
the facts were to be assumed. 46

67. Thirdly, with regard to the issue of the industry-wide convertibility of green and yellow quotation
prices, Dole’s allegation of the distortion of facts relates to paragraph 232 of the judgment under
appeal. Interestingly, the term ‘quotation prices’, 47 to which Dole objects, is not in fact used in that
passage of the judgment. The only relevant observation is that, in that passage, the General Court
finds there to be a close correlation between ‘green prices’ and ‘yellow prices’. Dole has not put
forward any evidence whatsoever that that finding might be incorrect, let alone manifestly incorrect.
On the contrary, the conclusion drawn by the General Court is in fact the conclusion which clearly
springs to mind if account is also taken of the evidence considered by the General Court and referred
to in the immediately preceding paragraphs — paragraphs 220 to 231 — of the judgment under appeal,
namely the e-mail from an Atlanta employee dated 2 January 2003. The interactions between the prices
applied by Chiquita and Dole are clearly described in that e-mail, even though one undertaking bases
its prices on a ‘yellow price’ and the other on a ‘green price’. Taken as a whole, the allegation of
distortion directed against paragraph 232 of the judgment under appeal is therefore likewise inherently
weak.

43 — PKK and KNK v Council, C-229/05 P, EU:C:2007:32, paragraph 37; Sniace v Commission, C-260/05 P, EU:C:2007:700, paragraph 37; and
Lafarge v Commission, C-413/08 P, EU:C:2010:346, paragraph 17.
44 — In the language of the case: ‘a yellow quote’; in the language of the deliberations: ‘une offre jaune’.
45 — In the language of the case: ‘a yellow price’; in the language of the deliberations: ‘un prix jaune’.
46 — P&O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission, C-442/03 P and C-471/03 P, EU:C:2006:356,
paragraphs 67 to 69; Sison v Council, C-266/05 P, EU:C:2007:75, paragraphs 70 to 72; and Inuit Tapiriit Kanatami and Others v Parliament
and Council, C-583/11 P, EU:C:2013:625, paragraph 112.
47 — In the language of the case: ‘quotation prices’.

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68. Broadly speaking, it appears to me that, in the context of this second ground of appeal, Dole
advances all manner of aberrant semantic quibbles, the sole aim of which is in fact to prompt the
Court simply to reassess the facts under the guise of a complaint of an alleged distortion of facts. 48 It is
not, however, for the Court of Justice, in its appellate jurisdiction, to substitute its own assessment of
market data and the competitive position for that of the General Court. 49

69. The allegations made by the appellants are further weakened by the fact that they take individual
passages of the judgment out of context. If the criticised paragraphs of the judgment under appeal are
viewed not in isolation but in the context of the other grounds stated for the judgment, it is clearly
seen that the General Court correctly grasped the functioning of the banana market in Northern
Europe, including its finer points. 50 The General Court did indeed also take note of Dole’s constantly
repeated argument about the lack of competition at the retail level between its own bananas and
those of Chiquita; 51 the fact that the General Court was ultimately not convinced by that argument is
incapable in itself of substantiating an allegation of distortion of facts or evidence.

70. Thus, all things considered, the second ground of appeal must be rejected.

C – Third ground of appeal: ‘inadequate assessment of the evidence’ by the General Court

71. By its third ground of appeal, which is subdivided into five parts, Dole alleges that ‘the General
Court’s assessment of the evidence was inadequate’. If Dole’s allegation were taken literally, this third
ground of appeal would have to be found to be manifestly inadmissible, since — save in the case of a
possible complaint of distortion — the assessment of the facts and evidence is a matter for the General
Court alone and, in its appellate jurisdiction, the Court of Justice does not have jurisdiction to conduct
such an assessment. 52 However, on closer inspection, the allegation of the alleged ‘inappropriate
assessment of the evidence’ conceals in essence various objections relating to the reasons stated for
the judgment under appeal, the legal requirements governing the statement of reasons for the
contested decision and the legal characterisation of facts.

1. The market structure and market position of the undertakings involved — the significance of yellow
and green bananas in the calculation of the market shares (first part of the third ground of appeal)

72. First, in the context of this third ground of appeal, Dole complains that, without providing an
appropriate statement of reasons for so doing, the General Court upheld the calculations relating to
the joint market share held by Dole, Chiquita and Del Monte/Weichert, upon which the Commission
relied in the contested decision for the purposes of describing the relevant market structure.

48 — Lafarge v Commission, EU:C:2010:346, paragraph 23; Ziegler v Commission, C-439/11 P, EU:C:2013:513, paragraphs 75 and 76; and
FLSmidth v Commission, C-238/12 P, EU:C:2014:284, paragraph 31.
49 — British Airways v Commission, C-95/04 P, EU:C:2007:166, paragraph 137.
50 — See, in particular, paragraphs 226 to 228 of the judgment under appeal.
51 — See, once again, paragraphs 128 to 132 of the judgment under appeal.
52 — San Marco v Commission, C-19/95 P, EU:C:1996:331, paragraphs 39 and 40; Commission v Schneider Electric, C-440/07 P, EU:C:2009:459,
paragraph 103; and Telefónica and Telefónica de España v Commission, EU:C:2014:2062, paragraph 84. See, similarly, MasterCard and
Others v Commission, EU:C:2014:2201, paragraph 60.

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73. This objection is directed primarily against paragraph 353 of the judgment under appeal, in which
the General Court concurs with the Commission’s finding ‘that Dole, Chiquita and Weichert had a
substantial share of the market’. The background to that finding was the Commission’s conclusion in
the contested decision that the combined market share held by Chiquita, Dole and Weichert
accounted for 45% to 50% of the market based on the value of banana sales in Northern Europe in
2002, 53 and for 40% to 45% of the market based on the ‘apparent consumption of fresh bananas in
Northern Europe’ over the same period. 54

74. Dole argues that the assessment of the combined market share of the undertakings involved is
excessively high in those estimates. The figures are inflated because the Commission added together
the figures for green and yellow bananas without taking into account the fact that only green bananas
are imported to Northern Europe and that some of those green bananas are first sold between
importers before they are supplied to retailers in a ripened condition as yellow bananas. In this way,
according to Dole, a percentage of the bananas sold on the Northern European market was taken into
account twice in the calculation of the market share figures.

75. In the appellants’ view, the General Court did not give sufficient consideration to this objection
raised by Dole, with the result that — to this extent — it claims that the judgment under appeal is
vitiated by a failure to state reasons.

76. This allegation is surprising, since, in paragraphs 351 to 354 of the judgment under appeal, the
General Court expressly sets out its position on Dole’s objection and, in essence, dismisses that
objection by stating that Dole’s line of argument ‘is based on an incorrect premiss, namely the
distinction between yellow bananas and green bananas’. 55

77. Thus, given that the General Court does indeed provide an — albeit brief — statement of reasons, I
cannot help but suspect that Dole in fact disagrees with the substance of the passage of the judgment
at issue. However, as far as the duty to provide a statement of reasons is concerned, such a criticism of
the substance is incapable of calling into question the formal legality of the judgment under appeal.
Dole may take a different view from the General Court on the substance of the matter. However, that
fact cannot in itself vitiate the judgment under appeal for failure to state reasons. 56

78. Nevertheless, the objection relating to the statement of grounds made by Dole also raises the
question of whether, from a formal perspective, the General Court could have been required to
provide a more detailed statement of reasons for the judgment under appeal in relation to Dole’s
criticism of the calculation of the combined market share of the undertakings involved.

79. The obligation to give a proper statement of reasons for a judgment at first instance follows from
Article 36 in conjunction with Article 53(1) of the Statute of the Court of Justice. It has consistently
been held that the statement of the reasons on which a judgment of the General Court is based must
clearly and unequivocally disclose that court’s reasoning in such a way as to enable the persons
concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its
power of review. 57

53 — Recitals 26 and 27 of the contested decision and paragraph 345 of the judgment under appeal.
54 — Recital 31 of the contested decision and paragraph 350 of the judgment under appeal.
55 — First sentence of paragraph 352 of the judgment under appeal.
56 — Wunenburger v Commission, C-362/05 P, EU:C:2007:322, paragraph 80, and Gogos v Commission, C-583/08 P, EU:C:2010:287, paragraph 35.
57 — Council v De Nil and Impens, C-259/96 P, EU:C:1998:224, paragraphs 32 and 33; France Télécom v Commission, C-202/07 P, EU:C:2009:214,
paragraph 29; and Mindo v Commission, C-652/11 P, EU:C:2013:229, paragraph 29.

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80. It is true that a failure to state reasons may also exist where, in its judgment, the General Court has
failed to rule on a head of claim, 58 a plea relied on at first instance 59 or otherwise on the arguments
advanced by a party to the proceedings. 60

81. However, it should be borne in mind that the General Court is not required to provide an account
which follows exhaustively all the arguments put forward by the parties to the case, particularly if they
were not sufficiently clear and precise. 61 Rather the reasoning provided by the General Court may be
implicit, on condition that it enables the persons concerned to know why the General Court has not
upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its
power of review. 62 The decisive factor is ultimately whether, in its statement of reasons, the General
Court has responded to all alleged infringements of rights and has duly addressed central parts of the
line of argument advanced by the parties to proceedings. 63

82. It is difficult to claim in the present case that Dole’s criticism of the figures used by the
Commission to calculate the combined market share of the undertakings involved constituted a
central part of its line of argument in the proceedings at first instance. This criticism was in fact
made simply in passing in Dole’s written submissions before the General Court. For example, Dole
devoted just one paragraph to this issue in the application, 64 and not even half a sentence in the
reply. 65 In substantive terms, Dole simply states that the market share taken as a basis by the
Commission is ‘significantly exaggerated’, and that an independent consumer survey revealed that in
Germany Chiquita, Dole and Del Monte/Weichert only had a combined market share of less than
25%.

83. Dole’s allegation that the Commission should not have added together the figures for green and
yellow bananas — now brought into the spotlight in the appeal proceedings — in fact appeared only
in a footnote in the proceedings at first instance. 66 At no point in Dole’s written submissions at first
instance is there a single mention of any double counting of bananas owing to the possible inclusion
of sales between importers.

84. As Dole had to concede in response to a specific question put by the Court, those two aspects —
green and yellow bananas being counted together on the one hand, and the double counting of
bananas traded between importers on the other hand — were also not discussed in any greater depth
at the hearing before the General Court.

85. In those circumstances, the General Court cannot be criticised for having failed to give detailed
consideration to those two aspects in the judgment under appeal. Accordingly, from no conceivable
angle can there be said to be an infringement of the duty to state reasons here.

58 — Evropaïki Dynamiki v Commission, C-200/10 P, EU:C:2011:281, paragraph 33.

59 — Vidrányi v Commission, C-283/90 P, EU:C:1991:361, paragraph 29; Commission v Greencore, C-123/03 P, EU:C:2004:783, paragraphs 40
and 41; and Gogos v Commission, EU:C:2010:287, paragraph 29.
60 — See, in each case in relation to arguments supporting the reduction of fines, Ferriere Nord v Commission, C-219/95 P, EU:C:1997:375; Dansk
Rørindustri and Others v Commission, EU:C:2005:408, paragraph 244; and France Télécom v Commission, EU:C:2009:214, paragraph 41.
61 — Connolly v Commission, C-274/99 P, EU:C:2001:127, paragraph 121, and FIAMM and Others v Council and Commission, EU:C:2008:476,
paragraph 91.
62 — Ziegler v Commission, EU:C:2013:513, paragraph 82; Gascogne Sack Deutschland v Commission, C-40/12 P, EU:C:2013:768, paragraph 35;
and MasterCard and Others v Commission, EU:C:2014:2201, paragraph 189.
63 — Komninou and Others v Commission, C-167/06 P, EU:C:2007:633, paragraph 22, and Mindo v Commission, EU:C:2013:229, paragraph 41.
64 — Paragraph 118 of the application at first instance.
65 — Paragraph 40 of the reply at first instance contains only a reference in parentheses to the ‘Commission’s exaggerated figures’.
66 — Footnote 86 in the application at first instance; footnote 44 in the reply at first instance repeats this allegation.

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2. Supplementary comments on the substantive criticism of the market share figures

86. Solely for the sake of completeness, I would also point out that the argument advanced by Dole in
the context of this first part of the third ground of appeal is likewise not an appropriate basis on which
to mount a substantive challenge to the General Court’s considerations regarding the combined market
share of the undertakings involved.

87. Since the assessment of facts and evidence is a matter for the General Court alone, it is certainly
not for the Court of Justice, on an appeal, to substitute its own assessment of market data and the
competitive position for that of the General Court. 67

88. It is indeed the case that, in appeal proceedings, the Court of Justice is competent to review the
legal characterisation of facts by the General Court and to establish whether there has been any
distortion of facts or evidence. 68 However, Dole has made neither complaint before the Court of
Justice in relation to the point at issue here, namely the calculation of the combined market share of
the undertakings involved. 69

89. Leaving aside the foregoing, Dole’s statements on the alleged inaccuracies in the calculation of the
combined market share of the undertakings involved are far too general and imprecise for a reasonable
response to be given. 70 In particular, Dole gives no indication whatsoever of the alleged extent of the
sales of bananas between importers to which it refers. Was this a widespread practice or just a
marginal phenomenon? 71 In the absence of a substantiated argument from Dole in this regard, 72 it is
ultimately impossible to assess whether any inclusion of sales between importers could have had any
significant influence at all on the market shares estimated in the contested decision and taken as a
basis by the General Court.

90. All in all, the first part of the third ground of appeal must therefore be rejected.

3. The description of the exchange of information between the participants in the cartel (second, third
and fourth parts of the third ground of appeal)

91. By the second, third and fourth parts of the third ground of appeal, Dole complains of a series of
errors of law committed by the General Court, all of which are connected with the description of the
exchange of information at issue between the undertakings involved.

67 — British Airways v Commission, EU:C:2007:166, paragraph 137.

68 — Commission v Brazzelli Lualdi and Others, C-136/92 P, EU:C:1994:211, paragraph 49; Commission v Schneider Electric, EU:C:2009:459,
paragraph 191; Council v Zhejiang Xinan Chemical Industrial Group, C-337/09 P, EU:C:2012:471, paragraph 55; and Ziegler v Commission,
EU:C:2013:513, paragraph 74.
69 — Dole did not base its allegation of the distortion of facts, made by it as part of the second ground of appeal, on allegedly incorrectly
calculated market shares.
70 — Lindorfer v Council, C-227/04 P, EU:C:2007:490, paragraph 83; Schindler Holding and Others v Commission, EU:C:2013:552, paragraph 45;
and MasterCard and Others v Commission, EU:C:2014:2201, paragraph 151.
71 — According to the explanations provided by the Commission at the hearing before the Court, explanations which Dole did not contradict, the
sales of bananas between importers were not of a significant volume. The same conclusion may likewise be drawn from the uncontested
findings of the Commission contained in recitals 451 to 453 of the contested decision, even though those findings are made in a different
context.
72 — It might have been expected that specific statements would be made in the course of the judicial proceedings at least in relation to any of
Dole’s own sales to other importers or to purchases by Dole from other importers, since Dole is in possession of all relevant information
about its own business dealings involving bananas.

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a) The requirements governing the statement of reasons for the contested decision (second and third
parts of the third ground of appeal)

92. First, Dole alleges that the requirements imposed by the General Court on the statement of reasons
for the contested decision were inadequate. In Dole’s view, the General Court should have demanded
that the Commission provide a more precise description of the matters on which the undertakings
involved engaged in a mutual exchange of information with an anti-competitive object (second part of
the third ground of appeal), and it should have required the Commission to comment in detail on the
pricing factors to which the established infringement having an anti-competitive object related (third
part of the third ground of appeal). There is a quite considerable overlap between these two points.
They should therefore be examined together.

93. The legal requirements applicable to the statement of reasons for decisions of the Commission in
the field of antitrust law follow from Article 253 EC (now the second paragraph of Article 296 TFEU).
In accordance with settled case-law, that statement of reasons must disclose in a clear and unequivocal
fashion the reasoning followed by the Commission in such a way as to enable the persons concerned to
ascertain the reasons for the measure and to enable the competent court of the European Union to
exercise its jurisdiction to review legality. 73

94. However, it is not necessary for the statement of reasons to go into all the relevant facts and points
of law, since the question whether the statement of reasons meets the requirements of Article 253 EC
must be assessed with regard not only to its wording but also to its context and to all the legal rules
governing the matter in question. 74

95. The General Court cited at length from the recitals of the contested judgment and pointed out,
inter alia, that the exchange of information between the undertakings involved in the present case
related to stocks, left-over import stocks at the ports, the expected market demand and the market
development — for example on the basis of ‘promotions’ — as well as the likelihood of a general
market increase or decrease in banana prices or whether prices would generally remain at status
quo. 75

96. I take the view that it is sufficiently clear from that list that Dole could not have been in doubt
about the exact subject of the infringement imputed to it. This is a fortiori true inasmuch as the
details relating to the exchange of information between the undertakings involved were taken inter
alia from the statements made by Dole itself in the course of the administrative procedure. 76

97. In addition, the General Court rightly stated that Article 253 EC does not require the Commission
‘to set out in a general manner an exhaustive list of factors which had to be regarded prima facie as
unlawful in the relevant sector’. 77 Indeed, contrary to what Dole appears to believe, it is not for the
Commission, in a decision adopted under Articles 7 and 23(2)(a) of Regulation No 1/2003, 78 to
provide the participants in the cartel with any advice about how to organise their future conduct on
the market. It is rather for the undertakings involved, as well as all other market operators, to ensure
entirely as matter of their own responsibility that they do not infringe the competition rules of the
internal market by their conduct on the market.

73 — Bertelsmann and Sony Corporation of America v Impala, C-413/06 P, EU:C:2008:392, paragraph 166; Elf Aquitaine v Commission,
C-521/09 P, EU:C:2011:620, paragraph 147; and Ziegler v Commission, EU:C:2013:513, paragraph 115.
74 — Bertelsmann and Sony Corporation of America v Impala, EU:C:2008:392, paragraph 166; Elf Aquitaine v Commission, EU:C:2011:620,
paragraph 150; and Ziegler v Commission, EU:C:2013:513, paragraph 116.
75 — Paragraphs 262 and 263 of the judgment under appeal.
76 — Paragraph 264 in conjunction with paragraphs 262 and 263 of the judgment under appeal.
77 — Paragraph 261 of the judgment under appeal.
78 — Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81
and 82 of the Treaty (OJ 2003 L 1, p. 1).

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98. The General Court therefore quite rightly rejected Dole’s complaint of a defective statement of
reasons for the contested decision. 79

b) Dole’s argument that the employees involved in the exchange of information were not themselves
responsible for the setting of quotation prices (fourth part of the third ground of appeal)

99. Next, Dole complains 80 that the General Court did not respond to its argument that the relevant
employees of Chiquita and Dole could not credibly be involved in an exchange of information because
they had no power within those undertakings to set the quotation prices. By this complaint, Dole is
alleging a failure to state reasons in the judgment under appeal. 81

100. As the Commission rightly points out, this complaint is based on an incorrect reading of the
judgment under appeal. In reality, paragraphs 577 to 582 of that judgment deal expressly with this
argument advanced by Dole. Dole may take a different view from the General Court on the substance
of the matter. However, that fact cannot in itself vitiate the judgment under appeal for failure to state
reasons. 82

101. Dole’s argument is also unfounded in substantive terms, since, even if the employee of an
undertaking does not personally determine that undertaking’s quotation prices, he may still be in
possession of the underlying internal information, exchange that information with his contacts from
other undertakings and thereby contribute to removing uncertainty as to the operation of the market
which would normally exist in a competitive environment. The general principle is that an employee
who does not have the power internally to make decisions about an undertaking’s commercial policy
and prices may still be involved externally in infringements of competition law. 83

102. Thus, taken as a whole, the second, third and fourth parts of the third ground of appeal are all
unsuccessful.

4. The concept of a ‘restriction of competition by object’ (fifth part of the third ground of appeal)

103. Lastly, by the fifth and final part of this third ground of appeal, Dole argues that the General
Court erred in its legal characterisation of the facts and infringed the rules governing the burden of
proof where it found that the communications between the employees of the undertakings involved
constituted a restriction of competition by object. Dole takes the view that the exchange of
information in the present case is incapable of removing uncertainties concerning the intended
conduct of the participating undertakings in relation to their pricing policy.

79 — Paragraph 267 of the judgment under appeal.

80 — In so far as this complaint is also relevant in the context of the fifth part of the third ground of appeal, I will address it here in the
comments which now follow.
81 — See, to this effect, Komninou and Others v Commission, EU:C:2007:633; Gogos v Commission, EU:C:2010:287, paragraph 29; and Mindo v
Commission, EU:C:2013:229, paragraph 41.
82 — Wunenburger v Commission, EU:C:2007:322, paragraph 80, and Gogos v Commission, EU:C:2010:287, paragraph 35.
83 — See, to this effect, Musique diffusion française and Others v Commission, 100/80 to 103/80, EU:C:1983:158, paragraph 97; Slovenská
sporitel’ňa, C-68/12, EU:C:2013:71, paragraph 25; and my Opinion in Schindler Holding and Others v Commission, C-501/11 P,
EU:C:2013:248, points 128 to 131.

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104. At first sight, the conclusion might be drawn that, by this submission, Dole seeks to prompt the
Court of Justice, in its appellate jurisdiction, to take the improper step of substituting its own
assessment of the facts and evidence for that of the General Court. In reality, the Court of Justice is
being asked here to examine whether the General Court applied the correct criteria and standards in
its assessment of the facts and evidence. That is a question of law amenable to review by the Court of
Justice in its appellate jurisdiction 84 and of particular interest in the light of the recent judgment in CB
v Commission. 85

105. I note at the outset that the General Court gave extremely detailed consideration to the market
conditions and the arguments advanced relating to those conditions, and set out very clearly the
reasons why the exchange of information between the undertakings involved had to be regarded, by
its very nature, as being harmful to the proper functioning of normal competition. The present case
differs fundamentally in this regard from the abovementioned case of CB v Commission.

a) The relevant legal criteria

106. Within the scope of Article 81 EC (now Article 101 TFEU), the anti-competitive nature of an
undertaking’s conduct may follow not just from the effects of that conduct but also from its object.
This applies equally to agreements, decisions and concerted practices. 86

107. Not every exchange of information between competitors necessarily has as its object the
prevention, restriction or distortion of competition within the common market within the meaning of
Article 81(1) EC. 87

108. The question whether, by its very nature, such an exchange of information reveals a sufficient
degree of harm to competition that it may be considered a restriction of competition by object within
the meaning of Article 81(1) EC must be assessed having regard to the subject-matter of the
information exchanged, the objectives of the exchange and the economic and legal context in which
that exchange takes place. 88 When determining that context, it is also necessary to take into
consideration the nature of the goods or services affected, as well as the real conditions of the
functioning and structure of the market or markets in question. 89 The parties’ intentions may likewise
be taken into account, even though they are not a factor which must necessarily be considered. 90

84 — Aalborg Portland and Others v Commission, C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P, EU:C:2004:6,
paragraph 125; Bertelsmann and Sony Corporation of America v Impala, EU:C:2008:392, paragraph 117; and Commission v Stichting
Administratiekantoor Portielje, C-440/11 P, EU:C:2013:514, paragraph 59.
85 — C-67/13 P, EU:C:2014:2204.
86 — T-Mobile Netherlands and Others, C-8/08, EU:C:2009:343, paragraph 24.
87 — See, in this regard, my Opinion in T-Mobile Netherlands and Others, EU:C:2009:110, point 37.
88 — T-Mobile Netherlands and Others, EU:C:2009:343, paragraph 27. See, to the same effect, Allianz Hungária Biztosító and Others, C-32/11,
EU:C:2013:160, paragraph 37, and CB v Commission, EU:C:2014:2204, paragraph 53.
89 — Allianz Hungária Biztosító and Others, EU:C:2013:160, paragraph 36, and CB v Commission, EU:C:2014:2204, paragraph 53.
90 — T-Mobile Netherlands and Others, EU:C:2009:343, paragraph 27; Allianz Hungária Biztosító and Others, EU:C:2013:160, paragraph 37; and
CB v Commission, EU:C:2014:2204, paragraph 54.

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109. If, on the basis of the criteria set out above, it appears that an exchange of information between
competitors can be regarded, by its very nature, as being harmful to the proper functioning of normal
competition, that is to say, in other words, that the exchange of information reveals in itself a sufficient
degree of harm to competition, the actual effects of the exchange of information on competition need
not be considered or taken into account. 91 The only requirement in those circumstances is that the
exchange of information is capable in an individual case of resulting in the prevention, restriction or
distortion of competition within the common market. 92

110. Furthermore, in accordance with the case-law of the Court, there is a rebuttable presumption that
undertakings participating in the concerted action and remaining active on the market take account of
the information exchanged with their competitors for the purposes of determining their conduct on
that market; it is for the undertakings concerned to prove the contrary. 93

b) The application of the relevant legal criteria to the individual case

111. Contrary to the view taken by Dole, I can see no indications whatsoever that, in the present case,
the General Court might have ignored or incorrectly applied the legal criteria set out above. 94

i) The nature of the exchange of information and its subject-matter

112. One of Dole’s main arguments, and an argument which the appellants advance not just here but
also again and again in other contexts, is that the undertakings involved exchanged no information
whatsoever about actual prices but simply about quotation price trends.

113. It should be noted in this regard that an exchange of information is not vitiated by an
anti-competitive object just where it relates directly to the prices applied on the market by the
undertakings involved. As the Court has already ruled, Article 81 EC (Article 101 TFEU) protects the
structure of the market and thus competition as such. 95 Accordingly, in order to find that a concerted
practice has an anti-competitive object, there does not need to be a direct link between that practice
and consumer prices. 96 Nor does there have to be a direct link between the information exchanged
and the wholesale prices. It is in fact sufficient for a finding of an anti-competitive object that
information is exchanged between competitors about factors relevant to their respective pricing policy
or — more generally — to their conduct on the market. 97

114. That is precisely the situation here.

91 — T-Mobile Netherlands and Others, EU:C:2009:343, paragraphs 29 and 30. See, to the same effect, Football Association Premier League and
Others, C-403/08 and C-429/08, EU:C:2011:631, paragraph 135; Allianz Hungária Biztosító and Others, EU:C:2013:160, paragraph 34; and
CB v Commission, EU:C:2014:2204, paragraphs 49 to 52 and the end of paragraph 57.
92 — T-Mobile Netherlands and Others, EU:C:2009:343, paragraphs 31 and 43. See, to the same effect, Allianz Hungária Biztosító and Others,
EU:C:2013:160, paragraph 38.
93 — Commission v Anic Partecipazioni, C-49/92 P, EU:C:1999:356, paragraphs 121 and 126; Hüls v Commission, C-199/92 P, EU:C:1999:358,
paragraphs 162 and 167; and T-Mobile Netherlands and Others, EU:C:2009:343, paragraph 51. See also my Opinion in T-Mobile
Netherlands and Others, EU:C:2009:110, point 75.
94 — In the following points, I will consider not only the arguments put forward by Dole in the context of this fifth part of the third ground of
appeal but also a number of others that Dole has advanced in passing on this issue in the context of other grounds of appeal.
95 — T-Mobile Netherlands and Others, EU:C:2009:343, paragraph 38, and GlaxoSmithKline Services v Commission, C-501/06 P, C-513/06 P,
C-515/06 P and C-519/06 P, EU:C:2009:610, paragraph 63.
96 — T-Mobile Netherlands and Others, EU:C:2009:343, paragraphs 36 to 39.
97 — See, to this effect, Suiker Unie and Others v Commission, 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, EU:C:1975:174,
paragraph 173; Deere v Commission, C-7/95 P, EU:C:1998:256, paragraph 86; and T-Mobile Netherlands and Others, EU:C:2009:343,
paragraph 32.

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115. According to the extremely detailed findings of the General Court, against which Dole has made
no allegation of distortion whatsoever, bilateral pre-pricing communications were exchanged in the
present case between the undertakings involved; as part of those communications, the undertakings
discussed their own quotation prices and certain price trends. 98

116. Once again according to the findings of the General Court, which — incidentally — can be traced
back not least to Dole’s own submissions, the quotation prices were relevant to the market
concerned. 99 In particular, in the present case, market signals, market trends and/or indications as to
the intended development of banana prices could be inferred from those quotation prices of the
banana importers; moreover, in some transactions, the prices were directly linked to the quotation
prices on the basis of contractually agreed pricing formulae. 100

117. I would add that, from a business perspective, it would make little sense to fix quotation prices in
the first place and to exchange information with competitors about their continued development if the
undertakings’ own quotation prices and the information obtained about the quotation prices of
competitors were not to be factored into the respective undertakings’ future conduct on the market
and the prices actually applied by them.

118. Following a very detailed discussion of the actual market conditions and the arguments advanced
by Dole, the General Court thus rightly concluded that the exchange of information conducted
between the undertakings involved had an anti-competitive object. 101

119. Indeed, such an exchange of information between competitors about price-relevant factors is
blatantly contrary to the requirement of independence, which is a key feature of the market conduct
of undertakings operating within a system of effective competition. 102 Consequently, and without this
requiring any further explanations, the exchange of information alone reveals in itself a sufficient
degree of harm to competition and can be regarded, by its very nature, as being harmful to the proper
functioning of normal competition. 103

120. In this connection, the present case differs fundamentally from the case of Asnef-Equifax, 104 to
which Dole has referred and which related to the Spanish credit information exchange system. This is
because the primary purpose of an exchange of information about the creditworthiness of borrowers,
such as in the case of Asnef-Equifax, is to enhance the functioning of the market and to create equal
conditions of competition for all credit providers, without one market operator in any way disclosing
to its competitors the conditions which it intends to offer to its customers. The effect of an exchange
of information such as that at issue here, which essentially relates to the factors relevant to the setting
of expected quotation prices and price trends, is exactly the opposite: by means of that exchange, the
undertakings involved disclose to their competitors — at least to some extent — their intended
conduct on the market and sensitive information connected to their future price ideas. This is quite
obviously capable of removing uncertainties concerning the intended conduct of the participating
undertakings and allows conditions of competition to be created which do not correspond to the
normal conditions of the market in question.

98 — See, in particular, paragraphs 15 to 17, 74, 187, 256, 375 and 583 of the judgment under appeal and recitals 51 to 57 of the contested
decision.
99 — Paragraphs 434 to 576 of the judgment under appeal; see also paragraphs 442 to 470 of that judgment, which are based on Dole’s own
submissions.
100 — Paragraphs 19, 574 and 638 of the judgment under appeal and recital 115 of the contested decision.
101 — See, in particular, paragraphs 553, 585 and 654 of the judgment under appeal.
102 — With regard to the requirement of independence, see, inter alia, Suiker Unie and Others v Commission, EU:C:1975:174, paragraph 173;
Deere v Commission, EU:C:1998:256, paragraphs 86 and 87; and T-Mobile Netherlands and Others, EU:C:2009:343, paragraphs 32 and 33.
103 — With regard to these criteria, see again the recent judgment in CB v Commission, EU:C:2014:2204, in particular paragraphs 50 and 57.
104 — Asnef-Equifax and Administración del Estado, C-238/05, EU:C:2006:734.

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121. Dole continues to try to ridicule the General Court’s finding of an anti-competitive object by
claiming that irrelevances — ‘mere gossip on general market conditions’ — and ‘the weather’ were the
primary topics of discussion between the undertakings concerned.

122. This argument is likewise unsuccessful from a legal standpoint. After all, it is irrelevant whether
an exchange of information about price-related factors constituted the main purpose of the contact
between the undertakings involved or simply took place in the framework (or under the auspices) of a
contact which in itself had no unlawful object. 105

123. In the light of the foregoing, Dole’s criticism in connection with the nature and subject-matter of
the exchange of information must be rejected in its entirety.

ii) The frequency and regularity of the exchange of information

124. A further objection advanced by Dole, which is likewise raised at various points in its arguments
in the appeal proceedings, relates to the frequency and regularity of the exchange of information
between the undertakings involved. Dole claims that the contested decision and the judgment under
appeal lack clarity in this regard.

125. Contrary to what Dole appears to suggest, and from a purely legal perspective, the finding of an
exchange of information having an anti-competitive object is by no means dependent on the existence
of a frequent or regular exchange of information between the undertakings involved. It is settled
case-law that even a single exchange of information can form the basis of a finding of infringement
and the imposition of a fine if the undertakings concerned remained active on the market after that
exchange of information. 106 The frequency and regularity with which information having an
anti-competitive object was exchanged can at most potentially be relevant to the amount of the fine.

126. Accordingly, Dole’s criticism of the allegedly defective findings made by the Commission and by
the General Court regarding the frequency and regularity of the exchange of information between the
undertakings involved misses the mark.

iii) The market structure

127. Finally, Dole emphasises at various points in the appeal proceedings that the combined market
share figures of the undertakings involved used by the Commission and the General Court are
‘exaggerated’ or ‘inflated’. 107 It is my impression that, by this criticism, Dole ultimately seeks to
undermine the General Court’s finding that, although the banana market in Northern Europe ‘cannot
be described as oligopolistic’, it is likewise not ‘characterised by supply of a fragmented nature’. 108

105 — See my Opinion in T-Mobile Netherlands and Others, EU:C:2009:110, point 51. See, to the same effect, IAZ International Belgium and
Others v Commission, 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82, EU:C:1983:310, paragraph 25; General Motors v Commission,
C-551/03 P, EU:C:2006:229, paragraph 64; and Beef Industry Development Society and Barry Brothers, C-209/07, EU:C:2008:643,
paragraph 21.
106 — T-Mobile Netherlands and Others, EU:C:2009:343, paragraphs 58 and 59. See also Commission v Anic Partecipazioni, EU:C:1999:356,
paragraph 121; Hüls v Commission, EU:C:1999:358, paragraph 162; and, additionally, my Opinion in T-Mobile Netherlands and Others,
EU:C:2009:110, points 97 to 107.
107 — See, in this regard, the first part of this third ground of appeal (see above, points 72 to 90 of this Opinion).
108 — Paragraph 353 of the judgment under appeal.

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128. The underlying basis for Dole’s line of argument may be the view that an exchange of information
between competitors can have an anti-competitive object only on a highly concentrated oligopolistic
market. 109 That view would, however, be wrong. It is true that the finding of an anti-competitive
object on such a market is particularly obvious. 110 Nevertheless, in accordance with case-law, an
information exchange system may constitute a breach of competition rules even where the relevant
market is not a highly concentrated oligopolistic market. 111 The only general principle applied in
relation to the market structure is that supply must not be fragmented. 112

129. Since, according to the findings of the General Court — findings not refuted by Dole 113 — there is
no evidence that supply is fragmented on the Northern European market for bananas, the appellant’s
line of argument regarding the market structure is ineffective.

iv) Summary

130. All things considered, Dole’s argument is thus incapable of invalidating the General Court’s legal
characterisation of the exchange of information at issue as a concerted practice having an
anti-competitive object prohibited under Article 81 EC.

5. Interim conclusion

131. As none of the individual objections raised by Dole is successful, the third ground of appeal must
be rejected in its entirety.

D – Fourth ground of appeal: calculation of the fine

132. Finally, the fourth ground of appeal is devoted to the calculation of the fine. As part of this
ground of appeal, Dole raises a total of two objections to the judgment under appeal, to which both
parts of this ground of appeal are dedicated.

1. First part of the fourth ground of appeal: consideration of the sales of Dole subsidiaries not involved
in the cartel

133. First, in the context of this fourth ground of appeal, Dole complains that the General Court erred
by calculating the fine based on sales of ‘undertakings’ in relation to which no finding of an
infringement was made, namely Dole’s subsidiaries VBH, Saba, Kempowski and Dole France, who
were not addressees of the statement of objections. This complaint is directed against paragraphs 619
to 623 of the judgment under appeal.

134. It appears to me that this complaint is based on a profound misunderstanding of the settled
case-law on the responsibility of parent companies for infringements of the antitrust rules committed
by their wholly owned subsidiaries and all other subsidiaries under their decisive influence.

135. The fundamental basis of that case-law is the notion that a parent company and its subsidiaries
form a single undertaking.

109 — As per the wording used in Deere v Commission, EU:C:1998:256, paragraph 88.
110 — See my Opinion in T-Mobile Netherlands and Others, EU:C:2009:110, point 53.
111 — Thyssen Stahl v Commission, C-194/99 P, EU:C:2003:527, paragraph 86.
112 — Thyssen Stahl v Commission, EU:C:2003:527, paragraph 86, and Asnef-Equifax and Aministración del Estado, EU:C:2006:734, paragraph 58.
113 — See again, in this regard, my comments in relation to the first part of this third ground of appeal in points 72 to 90 of the present Opinion.

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136. If a parent company and one or more of its subsidiaries under its decisive influence are regarded
as part of a single undertaking for the purposes of the finding of an infringement, the same must
likewise be true for the purposes of penalising that infringement by means of a fine. This is because
the concept of an undertaking within the framework both of Article 7 of Regulation No 1/2003 and of
Article 23 of that same regulation is identical and in each case may be traced back to Article 81 EC
(Article 101 TFEU).

137. Only by considering the sales of the parent company and those of all subsidiaries under that
company’s decisive influence is it possible, when calculating the amount of a fine, to take proper
account of the financial strength of the entire group involved in the cartel. 114

138. Dole’s objection that only one of its subsidiaries, namely Dole Fresh Fruit Europe, was directly
involved in anti-competitive practices is as invalid in the context of the penalising of the infringement
as it is in the context of the finding of that infringement. This is because the parent company and the
subsidiaries under its decisive influence are collectively a single undertaking for the purposes of
competition law and responsible for that undertaking. If that undertaking intentionally or negligently
infringes the competition rules, that gives rise to the collective personal responsibility of all the
principals in the group structure. 115

139. A contrary conclusion does not follow from the case-law in Tomkins referred to by Dole. It is true
that the secondary nature of the parent company’s liability for its wholly owned or almost wholly
owned subsidiaries is stressed in Commission v Tomkins. 116 However, that secondary nature in no way
calls into question the use of the group sales as the basis for the calculation of a fine. The consequence
of that secondary nature is rather simply that corrections to the fine imposed on a subsidiary may also
benefit the jointly and severally liable parent company if the subsidiary and the parent company bring
parallel actions for annulment before the General Court against the decision imposing the fine.

140. The General Court therefore rightly rejected Dole’s suggestion that, when calculating the fine, the
sales of all subsidiaries not directly involved in the infringement should have been disregarded. 117

141. In those circumstances, there is no need to give further consideration to whether the additional
element of the grounds, upon which the General Court also relied in the present context, was also
valid. According to that element, Dole’s argument as to the autonomy of some its subsidiaries and the
disregarding of their sales is meant to relate to the distinction between green and yellow bananas. 118 I
admit that this additional element of the grounds relied upon by the General Court is somewhat
surprising. However, from a legal perspective, the judgment under appeal is correct on the basis of
the abovementioned considerations on the concept of a single undertaking. 119

142. Consequently, this first part of the fourth ground of appeal is unsuccessful.

2. Second part of the fourth ground of appeal: consideration of the same sales twice

143. Secondly, in the context of this fourth ground of appeal, Dole complains that the General Court
erred by counting sales of the same products twice for the purposes of calculating the fine. This
complaint advanced by the appellants is directed against paragraph 630 of the judgment under appeal.

114 — See, in this regard, my Opinion in Alliance One International and Standard Commercial Tobacco v Commission, EU:C:2012:11, point 1.
115 — See, in this regard, my Opinion in Alliance One International and Standard Commercial Tobacco v Commission, EU:C:2012:11, point 173,
and my Opinion in Akzo Nobel and Others v Commission, C-97/08 P, EU:C:2009:262, point 97.
116 — Commission v Tomkins, C-286/11 P, EU:C:2013:29, paragraph 39.
117 — Paragraphs 619 and 620 of the judgment under appeal.
118 — Paragraph 621 of the judgment under appeal.
119 — See, in this regard, points 134 to 140 of this Opinion.

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144. More specifically, the complaint is that, for the purposes of the calculation of the fine, the
Commission — with the endorsement of the General Court — counted twice in the sales figures
those bananas which Dole initially sold to third parties not participating in the cartel and then bought
back from those third parties. The only example given by Dole relates to the sale of its own bananas to
the company Cobana and the re-sale of those same bananas by Cobana to Dole’s subsidiary
Kempowski.

145. It should be noted in this regard that appeal proceedings are limited to points of law. 120 It is
unclear from Dole’s arguments in connection with this second part of the fourth ground of appeal
what error of law the General Court is alleged to have committed. Dole’s submissions on this point
are too general and imprecise for a reasonable response to be given. 121 I therefore propose that they
be dismissed as inadmissible.

146. In the alternative, I would also point out that all questions connected with the amount of the fine
fall within the unlimited jurisdiction of the General Court (Article 261 TFEU in conjunction with
Article 31 of Regulation No 1/2003). The General Court’s exercise of that power is reviewed by the
Court of Justice solely to establish whether, in exercising that power, the General Court committed
manifest errors. 122 Errors of that kind must be assumed, first, where the General Court disregarded
the extent of its powers under Article 261 TFEU, 123 second, where it did not fully consider all the
material points, 124 and, third, where it applied incorrect legal criteria, 125 not least having regard to the
principles of equal treatment 126 and proportionality. 127

147. As the value of the goods to which the infringement of Article 81 EC (now Article 101 TFEU)
directly or indirectly relates is used as an indicator of the significance of the infringement, 128 it is
perfectly reasonable — for the purposes of calculating the fine — to take into account all sales of
those goods by a participant in the cartel. If a participant in a cartel has conducted multiple
commercial transactions involving the very same goods — for example, by first selling those goods to
a third party and then later buying them back again from that third party or even from a fourth
party — that double sale may be deemed to be evidence of the economic significance of those goods
to the cartel participant.

148. In view of the foregoing, the General Court did not commit a manifest error by not criticising, as
part of its review of the calculation of the fine, the double counting of Dole transactions by which it
first sold bananas and then bought them back again.

149. Consequently, the fourth ground of appeal must fail in its entirety.

120 — Vidrányi v Commission, EU:C:1991:361, paragraphs 11 to 13; Aalborg Portland and Others v Commission, EU:C:2004:6, paragraphs 47
and 48; and Telefónica and Telefónica de España v Commission, EU:C:2014:2062, paragraph 84.
121 — Lindorfer v Council, EU:C:2007:490, paragraph 83; Schindler Holding and Others v Commission, EU:C:2013:552, paragraph 45; and
MasterCard and Others v Commission, EU:C:2014:2201, paragraph 151.
122 — Aalborg Portland and Others v Commission, EU:C:2004:6, paragraph 365.
123 — See, in this regard, my Opinion in Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission,
C-105/04 P, EU:C:2005:751, point 137, and my Opinion in Schindler Holding and Others v Commission, EU:C:2013:248, point 190. See, to
the same effect, Schindler Holding and Others v Commission, EU:C:2013:522, paragraphs 155 and 156, and Kone and Others v Commission,
EU:C:2013:696, paragraphs 40 and 42.
124 — Baustahlgewebe v Commission, C-185/95 P, EU:C:1998:608, paragraph 128; Dansk Rørindustri and Others v Commission, EU:C:2005:408,
paragraphs 244 and 303; and Papierfabrik August Koehler and Others v Commission, C-322/07 P, C-327/07 P and C-388/07 P,
EU:C:2009:500, paragraph 125.
125 — Baustahlgewebe v Commission, EU:C:1998:608, paragraph 128; Dansk Rørindustri and Others v Commission, EU:C:2005:408, paragraphs 244
and 303; and Papierfabrik August Koehler and Others v Commission, EU:C:2009:500, paragraph 125.
126 — Weig v Commission, C-280/98 P, EU:C:2000:627, paragraphs 63 and 68, and Sarrió v Commission, C-291/98 P, EU:C:2000:631,
paragraphs 97 and 99.
127 — E.ON Energie v Commission, EU:C:2012:738, paragraph 126, and Schindler Holding and Others v Commission, EU:C:2013:522,
paragraph 165.
128 — Team Relocations and Others v Commission, C-444/11 P, EU:C:2013:464, paragraphs 76 and 88.

ECLI:EU:C:2014:2437 25
 OPINION OF MRS KOKOTT — CASE C-286/13 P
DOLE FOOD AND DOLE FRESH FRUIT EUROPE v COMMISSION

E – Summary

150. As none of the grounds of appeal put forward by Dole is successful, the appeal must be dismissed
in its entirety.

V – Costs

151. Under Article 184(2) of its Rules of Procedure, the Court is to make a decision as to costs where
it dismisses an appeal.

152. It follows from Article 138(1) and (2) in conjunction with Article 184(1) of the Rules of Procedure
that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the
successful party’s pleadings; where there is more than one unsuccessful party, the Court is to decide
how the costs are to be shared. Since the Commission has applied for costs against the appellants and
the latter have been unsuccessful in their pleas, they must be ordered to pay the costs. Since they
brought the appeal jointly, they must bear the costs jointly and severally. 129

VI – Conclusion

153. In the light of the foregoing considerations, I propose that the Court should:

(1) dismiss the appeal;

(2) order Dole Food Company, Inc. and Dole Fresh Fruit Europe OHG to pay the costs of the
dispute on a joint and several basis.

129 — Akzo Nobel Chemicals and Akcros Chemicals v Commission, C-550/07 P, EU:C:2010:512, paragraph 123. See, to the same effect, D and
Sweden v Council, C-122/99 P and C-125/99 P, EU:C:2001:304, paragraph 65; in the latter case, even though D and the Kingdom of
Sweden had brought two separate appeals they were nevertheless ordered to bear the costs jointly and severally.

26 ECLI:EU:C:2014:2437