ORDER OF THE GENERAL COURT (Eighth Chamber)
17 February 2010(*)
(Intervention – Confidentiality)
In Case T‑587/08,
Fresh Del Monte Produce, established in George Town (Cayman Islands), represented by B. Meyring, lawyer, and E. Verghese, Solicitor,
applicant,
v
European Commission, represented initially by M. Kellerbauer, A. Biolan and X. Lewis, and subsequently by M. Kellerbauer, A. Biolan and P.J.O. Van Nuffel, acting as Agents,
defendant,
APPLICATION for annulment of Commission Decision C(2008) 5955 final of 15 October 2008 relating to a proceeding under Article 81 EC (Case COMP/39.188 – Bananas) concerning a cartel in part of the European market for bananas relating to coordination in the setting of quotation prices for bananas, and annulment or reduction of the fine imposed on the applicant,
THE GENERAL COURT (Eighth Chamber)
makes the following
Order
Background
1 By Decision C(2008) 5955 final of 15 October 2008 (Case COMP/39.188 – Bananas) (‘the contested decision’), the Commission found that Chiquita International Services Group NV, Chiquita Banana Company BV, Chiquita International Ltd, Chiquita Brands International, Inc., Dole Fresh Fruit Europe OHG, Dole Food Company, Inc., Fresh Del Monte Produce Inc. (‘Del Monte’ or ‘the applicant’) and Internationale Fruchtimport Gesellschaft Weichert & Co. KG (‘Weichert’) had infringed Article 81(1) EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating in a cartel in part of the European banana market, and imposed fines on some of the undertakings referred to above.
2 In the contested decision, the Commission found, inter alia, that Del Monte and Weichert had infringed Article 81 [EC] by participating in a concerted practice by which they coordinated quotation prices for bananas from 1 January 2000 to 31 December 2002 (Article 1 of the contested decision). The Commission directed those undertakings, jointly and severally, to pay a fine of EUR 14 700 000 (Article 2(c) of the contested decision) and ordered them to bring the infringement to an end immediately in so far as they had not already done so, and to refrain from repeating any act or conduct described in Article 1, and from any act or conduct having the same or similar object or effect (Article 3 of the contested decision). The decision was addressed, inter alia, to Del Monte and Weichert (Article 4 of the contested decision).
3 It is apparent from the statement of reasons for the contested decision that the Commission found that Weichert had directly participated in the cartel (recital 380 to the contested decision). With regard to Del Monte, the Commission took the view that it had to be held responsible for Weichert’s conduct because, during the period of the infringement, Del Monte was in a position to exert a decisive influence on Weichert’s commercial conduct and that it had effectively exercised that influence (recital 393 to the contested decision).
Procedure
4 By application lodged at the Registry of the Court on 31 December 2008, the applicant brought an action against the contested decision in which it requested the Court to annul Articles 1, 2, 3 and 4 of that decision in so far as it pertains to the applicant; alternatively, substantially to reduce the fine imposed on it pursuant to Article 2(c) of the decision; alternatively, to annul Articles 1 and 3 of the decision in so far as they pertain to the applicant; and to order the Commission to pay the costs.
5 The Commission contended that the action should be dismissed and the applicant ordered to pay the costs.
6 By application lodged at the Registry of the Court on 2 January 2009 (Case T‑2/09), Weichert also brought an action for annulment of the contested decision in so far as it relates to Weichert, or, in the alternative, for the annulment or reduction of the fine imposed on it and an order for the Commission to pay the costs.
7 By document lodged at the Registry of the Court on 9 April 2009, Weichert applied to intervene in the proceedings in support of the form of order sought by Del Monte.
8 The applicant and the Commission submitted their written observations on that application to intervene by documents lodged at the Registry of the Court on 18 and 28 May 2009 respectively.
9 By document lodged at the Registry on 28 May 2009, the Commission requested confidential treatment vis-à-vis Weichert in respect of certain information contained in the defence and in the annexes thereto.
10 By document lodged at the Registry on 29 May 2009, the applicant requested confidential treatment vis-à-vis Weichert in respect of certain information contained in the application and in the annexes thereto.
11 By order of 30 November 2009, the Court (Eighth Chamber) declared the action brought by Weichert to be inadmissible on account of delay.
12 In accordance with the third subparagraph of Article 116(1) of the Rules of Procedure of the Court, the President of the Eighth Chamber referred the present application to intervene to the Eighth Chamber.
Law
Arguments of the parties
13 Weichert submits that it has an interest in the result of the present case.
14 In the first place, according to Weichert, it is directly affected by the contested act. Weichert was specifically named in the decision in respect of which Del Monte brought an action for annulment and in which it is alleged that Weichert infringed Article 81 EC. There is only one alleged infringement of Article 81 EC, which relates to Weichert’s conduct, and only one fine, for which Del Monte and Weichert are jointly and severally liable.
15 In the second place, Weichert claims to be directly affected by the outcome of Del Monte’s application.
16 First of all, Weichert has a direct and existing interest in the annulment by the Court of Articles 1 2, 3 and 4 of the contested decision in so far as it relates to Del Monte. In the event that the Court annuls the decision in so far as it relates to Del Monte on the ground that Weichert did not infringe Article 81 EC, the Commission would be under a duty, in accordance with the principle of justice and fairness and with the overriding requirement of legality and the principles of sound administration and proportionality, to refrain from any enforcement measure against Weichert. Weichert also has a direct and existing interest in the Court’s annulment of Articles 1, 2, 3 and 4 of the contested decision on the ground that Weichert did not infringe Article 81 EC, since the direct effect of such an annulment would be that Weichert would be in a position to resist actions for damages brought by third parties.
17 Second, Weichert has a direct and existing interest in the form of order sought by which Del Monte requests a substantial reduction of the fine imposed on it, since the Commission could lawfully enforce only the reduced amount of the fine against Weichert.
18 Third, Weichert has a direct and existing interest in the form of order sought by which Del Monte requests the Court to annul Articles 1 and 3 of the contested decision in so far as they relate to Del Monte, since, in the event that those articles are annulled on the ground that Weichert did not infringe Article 81 EC, the Commission would be required to refrain from enforcement measures against Weichert.
19 In the third place, Weichert states that it is apparent from Community case-law that any inadmissibility of the action which it brought against the contested decision is of no consequence for its interest in the result of the case.
20 The applicant states, in essence, that, in so far as Weichert is not permitted to make any arguments which run counter to the form of order sought by the applicant, it does not object to Weichert’s application to intervene.
21 The Commission, on the other hand, raises objections to the application to intervene.
22 It contends, in essence, that Weichert has no interest in the annulment of the contested decision or in the reduction of the fine imposed pursuant to that decision in so far as it relates to the applicant. Although drafted and published in the form of a single decision, the contested decision consists of a set of individual decisions finding that each addressee has infringed Article 81(1) EC and, therefore, comprises as many individual decisions as addressees, with the result that an application for annulment concerns only the individual decision addressed to the applicant who brings the action. A decision addressed to undertakings that are held jointly and severally liable because they were part of the same economic unit has different legal effects for each addressee and, accordingly, its annulment with regard to one addressee has no bearing on the interests of another, since the attribution of joint and several liability affects merely the way in which payment of the fine is to be shared. Finally, Weichert may indeed have an interest in supporting the applicant’s argument that the applicant should not be held liable for any infringement because Weichert has committed no infringement. However, it has been consistently held that it is insufficient, for a party to be granted leave to intervene, that it merely supports the pleas put forward by another party.
Findings of the Court
23 The application to intervene has been made in accordance with Article 115 of the Rules of Procedure.
24 Under the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 of the Statute, any person which can establish an interest in the result of a case, except for cases between Member States, between Community institutions or between Member States and Community institutions, is entitled to intervene.
25 It has consistently been held that the concept of an interest in the result of the case, within the meaning of that provision, must be defined in the light of the precise subject-matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law and arguments put forward. The expression ‘result’ is to be understood as meaning the operative part of the final judgment which the parties ask the Court to deliver. It is appropriate, in particular, to ascertain whether the intervener is directly affected by the contested measure and whether his interest in the result of the case is established (see, to that effect, order in Case C‑76/93 P Scaramuzza v Commission [1993] ECR I‑5715, paragraph 9; see also order of the President of 6 April 2006 in Case C‑130/06 P An Post v Deutsche Post and Others, not published in the ECR, paragraph 8 and the case-law cited; see orders in Case T‑15/02 BASF v Commission [2003] ECR II‑213, paragraph 26, and in Case T‑14/00 Coöperatieve Aan- en Verkoopvereniging Ulestraten, Schimmert en Hulsberg and Others v Commission [2004] ECR II‑497, paragraph 11 and the case-law cited).
26 As the Commission in essence notes, moreover, in recitals 361 and 362 to the contested decision, Community competition law refers to the activities of undertakings. The concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. The Court of Justice has also stated that the concept of an undertaking, in the same context, must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal. When such an economic entity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement (see, to that effect, Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑0000, paragraphs 54 to 56 and the case-law cited).
27 In the present case, it must be noted that the Commission took the view in recital 362 to the contested decision that, ‘[f]or each undertaking that is to be held accountable for infringing Article 81 [EC] in this case one or more legal entities are identified which would bear legal liability for the infringement in this case’. It found that the applicant and Weichert formed an ‘economic unit’ for the purposes of the application of the rules on competition, as Weichert did not independently determine its own conduct on the market (recital 432 to the contested decision). The Commission thus concluded in recital 434 to the contested decision that, ‘[b]ased on the foregoing, it has been established that the following legal entities bear liability for the infringement of Article 81 [EC] subject to this decision: … [Weichert] and [Del Monte] jointly and severally …’.
28 In the context of the present action, as is apparent from paragraph 4 above, the applicant seeks, in essence, the annulment of Articles 1, 2, 3 and 4 of the contested decision in so far as it concerns the applicant, or, in the alternative, a reduction of the fine imposed on the applicant pursuant to Article 2(c) of the contested decision.
29 It must be held that the applicant and Weichert were regarded in the contested decision, for the purposes of the application of Article 81 EC, as one and the same undertaking and were found to have committed one and the same infringement related to Weichert’s conduct in the market, and that the applicant was held liable for the infringement only because the applicant and Weichert formed an economic unit. In addition, the applicant and Weichert were ordered jointly and severally to pay a single fine. Weichert must, therefore, be entitled to intervene in the present case.
30 However, since it did not bring an action for annulment within the prescribed time-limit, its rights of intervention must be confined to supporting the form of order sought by the applicant (see, to that effect, order in Case C‑245/95 Commission v NTN Corporation [1996] ECR I‑553, paragraph 9, and order in Case T‑35/91 Eurosport v Commission [1991] ECR II‑1359, paragraph 15).
31 In addition, contrary to the Commission’s contention, the fact that Weichert itself had an independent right of action against the contested decision in so far as that decision concerns it is irrelevant for the purposes of determining whether Weichert has established an interest in intervening in the case. It is equally irrelevant for those purposes that Weichert has in fact brought such an action (see, to that effect, order in Coöperatieve Aan- en Verkoopvereniging Ulestraten, Schimmert en Hulsberg and Others v Commission, cited in paragraph 25 above, paragraph 19) or that such an action has been declared inadmissible.
32 Having regard to the foregoing considerations, it must be concluded that the interest in intervening on which Weichert relies must be classified as a direct and existing interest in the result of the case within the meaning of the second paragraph of Article 40 of the Statute. Accordingly, the application to intervene should be allowed.
33 The notice in the Official Journal of the European Union referred to in Article 24(6) of the Rules of Procedure was published on 21 February 2009; therefore, the application to intervene was made within the time-limit prescribed under Article 115(1) of those rules and the rights of the intervener will be those provided for in Article 116(2) to (4) thereof.
34 However, the applicant and the Commission have applied pursuant to Article 116(2) of the Rules of Procedure for certain confidential information in the documents before the Court to be omitted from the copies to be sent to the intervener and have produced, to that end, a non-confidential version of the pleadings or documents concerned.
35 At this stage, copies of the documents served and, if appropriate, to be served on the parties, which are to be sent to the intervener, must therefore be limited to non-confidential versions. A decision on the merits of the request for confidentiality will, if necessary, be taken at a later stage in the light of any objections or observations which may be submitted in that regard.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby orders:
1. Internationale Fruchtimport Gesellschaft Weichert & Co. KG is granted leave to intervene in Case T‑587/08 in support of the form of order sought by the applicant.
2. The Registrar shall send to the intervener a non-confidential version of every procedural document served on the parties.
3. A period shall be prescribed within which the intervener must submit any observations on the application for confidential treatment. The decision on the merits of that application is reserved.
4. A period shall be prescribed within which the intervener must lodge a statement in intervention, without prejudice to the possibility of supplementing it subsequently, if necessary, following a decision on the merits of the application for confidential treatment.
5. Costs are reserved.
Luxembourg, 17 February 2010.
E. Coulon | | M.E. Martins Ribeiro |