Exceptional acceptance of interruption of single continuous infringement-argument by EU Court

The General Court (Case T 655/11 - FSL and Others) granted FSL Holdings, Firma Leon Van Parys and Pacific Fruit Company Italy (jointly referred to as Pacific) a reduction of approximately 25% on an 8.92 million Euros fine imposed by the Commission in 2011. The Commission found that Pacific and Chiquita took part in an institutionalized and systematic price-fixing cartel in the banana market in southern European countries. Chiquita was granted immunity from fines under the 2002 Leniency Notice. For Pacific’s fine reduction, the Court argued that the Commission failed to establish the continuous nature of the infringement. The Court reassessed the infringement period and reduced the fine accordingly.

The Commissions held that the price coordination scheme was set up at a meeting on 28 July 2004 and continued throughout 8 April 2005 and thus lasted for about 8 months. The Court rejected the Commission’s approach to establish the continuous nature of the infringement in question. According to the Court, the Commission has to first satisfy its initial burden of proof before it can argue that there is no evidence to suggest that the infringement was interrupted. In order to do so, it needs to present evidence of facts sufficiently proximate in time which allow the reasonable conclusion that an infringement continued without interruption between two specific dates. It is not allowed to infer the participation of an undertaking in cartel activity from mere speculation based on imprecise evidence. 

By this measure, Chiquita’s disputed statements in respect to the period not covered by the documentary evidence is insufficient to prove continuation of Pacific’s infringement. The fact that there is no documentary evidence suggesting contact between Chiquita and Pacific for about five months is particularly relevant for the banana business where price negotiations take place on a weekly basis and a price-fixing agreement would need to follow this path. Based on Pacific’s acknowledgement that it resumed the cartel activities after five months the Court qualified the infringement as “single and repeated” and reduced the duration from eight to three month. Accordingly, the fine had to be adjusted.
This decision shows that the Court assesses arguments concerning infringement interruptions diligently and compares the activity with the particular situation of the relevant market. Longer periods of inactivity have to be carefully assessed and the Commission cannot simply refer to the secretive nature of a contested cartel. This holds particularly true when the conditions on the respective market require a coordination on a regular basis.