On 19 March 2015, the Court of Justice handed down its judgment in Dole v Commission (Case C-286/13 P). The Court of Justice dismissed entirely Dole's appeal against a finding of participation in a concerted practice to exchange information in the market for bananas.
The General Court ("GC") had upheld the Commission's finding of infringement by object given that in the context of the market for bananas the information exchanged decreased uncertainty [See our April 2013 newsletter article]. The information exchanged related to, among others, competitors' own quotation prices, price trends and views on weather conditions. The pre-pricing information was found to reduce uncertainty because market trends, indications of developments and in some transactions actual prices could be inferred.
On appeal, Dole submitted that because the nature of the information and how removed it was from the setting of the actual prices, the exchange of information "cannot be regarded as capable of removing uncertainty".
In its judgment, the Court of Justice first recalled established case law on object restrictions. It is established in the jurisprudence that certain practices are so likely to have negative effects that, having regard to the objectives and the economic context, neither the effects on the market nor their direct connection to consumer the prices would have to be proven. The Court of Justice also recalled the rebuttable presumption that undertakings which remain active in the market are presumed to have taken account of the information exchanged (CB v Commission C-67/13 P; T-Mobile Netherlands v Commission C-8/08).
Having regard to the established case law and facts, the Court of Justice found that the GC did not err in law and was "entitled to take the view" that these pre-pricing communications constituted a restriction by object because they "made it possible to reduce uncertainty for each of the participants as to the foreseeable conduct of competitors".
This judgment serves as a stark reminder that, given the economic context, certain pre-pricing information that may make it possible to reduce uncertainty, can be regarded by the authorities as an object restriction.