Banana Price-Fixing Fine Against Dole Upheld


     (CN) – The European Court of Justice on Thursday refused to set aside a lower court’s finding that Dole participated in a scheme to manipulate the market price of bananas.
     In 2008, the European Commission busted Dole, Del Monte and importer Weichert for colluding to pre-fix weekly price quotes for bananas in an effort to reduce their own risk and manipulate the market.
     Regulators gave Chiquita a pass for reporting the scheme, but slapped the other companies with an $83 million fine collectively.
     Dole contested the commission’s action in the European General Court, which dismissed the appeal in 2012.
     The company took its case to the EU high court, demanding either a reduction in the fine or a complete annulment of the commission’s decision. It argued that the commission did not prove that the weekly pre-pricing communications were intended to fix prices, and quibbled that the lower court had not allowed it to adequately defend itself against the regulators’ accusations.
     But Dole raised most of these issues for the first time on appeal and cannot complain now, the Luxembourg-based high court ruled.
     The high court also rejected Dole’s belief that the lower court had “distorted the facts” by tying price quotes for green bananas to quotes for yellow bananas, sold weeks later and to different markets and buyers than those interested in green bananas.
     “The general court gave due consideration to the nature of quotation prices, the difference between those prices and actual prices, the general functioning of the market and the specific features of Chiquita’s, Dole Food’s and Weichert’s internal procedure and practice,” the high court found.
     “The argument that the Chiquita and Dole Food bananas for which the quotation prices were issued on the same day were not sold during the same weeks and were not therefore in competition with each other must be rejected, in any event, as ineffective,” the court continued. “The claim that sales were not synchronized, even if it were proven, would not in any event affect the general court’s findings, based on evidence provided by the undertakings in question themselves from which it is apparent that green and yellow quotation prices were convertible and that Chiquita’s setting of the yellow quotation price was, of its own admission, influenced by the development of the quotation prices issued by Dole Food.”
     Finally, the court rejected Dole’s argument that it could not – as parent company – be held financially liable for the sins of its subsidiaries.
     “Dole Food’s argument is based on a misunderstanding of the court’s settled case-law on the responsibility of parent companies for infringements of the rules on agreements, decisions and concerted practices committed by their wholly owned subsidiaries,” the court wrote.
     “It is the court’s established case-law that it is permissible, for the purpose of fixing the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the products in respect of which the infringement was committed, which gives an indication of the scale of the infringement,” the court concluded.

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