A Bananas Judgment: Denying a Parent Company Access to a Related Company’s Reply to the Statement of Objections

Laura Atlee, May 14, 2013

Back in 2007 the European Commission (“EC”) initiated proceedings against a number of companies involved in the banana market alleging that they had been involved in a cartel. The proceedings took the normal course: Statement of Objections (“SO”) decision, then appeal to the General Court. With the whole process taking approximately eight years, it is anyone’s guess whether Dole, Del Monte, and Weichert will appeal the General Court’s judgments of March 14, 2013 (Case T-588/08 and Case T-587/08). Maybe the old saying applies, “In for a penny, in for a pound…of bananas.”

The Court has outdone itself with both judgments-each one is at least 150 pages. In Dole’s case (T-588/08), the Court failed to side with the applicant on any point. While the judgment provides a number of reminders on certain points of EU competition law, in most regards it is relatively unremarkable.  Most of the judgment in Del Monte’s case (T-587/08), in which Weichert intervened, is also fairly unremarkable (except for one very important point) although the Court did reduce the fine for which Del Monte and Weichert were jointly and severally liable. At the time of the infringement, Weichert was a distributor of Del Monte bananas. The EC found the two companies to be part of the same undertaking, a point that we will discuss further below.

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