21.2.2009

EN

Official Journal of the European Union

C 44/67

(Case T-588/08)

(2009/C 44/114)

Language of the case: English

Parties

Applicants: Dole Food Company, Inc. (Wilmington, United States) and Dole Germany OHG (Hamburg, Germany) (represented by: J.-F. Bellis, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—annul the contested decision;

—annul or reduce the amount of the fine imposed;

—order the Commission to bear the costs.

Pleas in law and main arguments

By means of this application, the applicants seek annulment pursuant to Article 230 EC of the Commission Decision C(2008) 5955 final of 15 October 2008 (Case COMP/39.188 — Bananas) relating to a proceeding under Article 81(1) EC which held them liable for participating in a concerted practice of coordination of quotation prices for bananas imported to the eight Member States of the Northern European region of the Community. They also seek the annulment or the reduction of the fine imposed on them.

In support of their claims, the applicants put forward two pleas.

First, the applicants submit that the Commission erred in determining that the conduct at issue was a restriction of competition by object under Article 81 EC. The applicants contend that in fact, the conduct at issue consisted exclusively in occasional bilateral communications between banana importers involving general market gossip and did not form part of a broader price-fixing or market-sharing cartel and was thus not a restriction of competition by object. These communications took place prior to the setting of quotation prices that is at a stage far removed from the negotiation of actual prices with customers. Further the applicants state that these communications were not, and could not be, to restrict competition in the banana market since quotation prices are not actual prices and do not form the basis for the negotiation of actual prices of green bananas.

Second, the applicants claim that the fine imposed on them was unjustified because the basic amount of the fine is based on the value of sales of goods to which the alleged infringement does not relate. Further, the applicants argue that the fine was also disproportionate because the basic amount of the fine was wrongly set on the premise that the conduct concerned price-fixing.