17 October 2008

RBB advises on EC Commission bananas cartel investigation

On 15 October 2008 the EC Commission announced a decision to fine banana importers Dole and Weichert a total of just over €60 million for their participation in horizontal conduct that was judged to be in breach of Article 81.RBB advised two of the major European banana shippers, Fyffes and Weichert, on the Commission's investigation. Although Fyffes originally received a Statement of Objections from the Commission, following its oral and written representations to the SO Fyffes was not fined and was not an addressee of the Commission's final decision. The fines on Dole and Weichert were reduced by 60% in recognition of the specific regulatory régime for the banana market that was in place at the time (and an additional reduction of 10% was accorded to Weichert as it did not participate in a part of the conduct to which the Commission objected). The case raises a number of distinctive legal and economic issues that will be of relevance to other cases where information exchanges between competitors are alleged to contribute to cartel outcomes. As regards the economic analysis, the decision demonstrates a preparedness of the Commission to adapt its approach in light of evidence on the economic context within which the alleged infringements took place.RBB worked alongside a team from SJ Berwin led by Stephen Kon, Elaine Gibson-Bolton and Alexander Rinne, on this matter.

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