Let’s get back to the judgment of the Court of Justice’s judgment of 19 March 2015 in Case C-286/13 P Dole Food Company and Dole Fresh Fruit Europe v Commission, EU:C:2015:184 and look at a couple of procedural points that came up. The post on an interesting substantive aspect is here.

A new point first raised in litigation and not raised in the administrative procedure.

The Appellants, the Dole companies, submitted that, instead of finding that the contested decision failed to give adequate reasons, the General Court allowed the Commission to address for the first time during the judicial proceedings a critical issue relating to the economic context of the conduct which it imputes to the undertakings in question. The Appellants argued at first instance that the Commission failed to provide reasons for its theory that the purpose of the pre-pricing communications was to coordinate prices, even though the Chiquita and DFFE quotation prices concerned bananas which would not be sold in competition with each other during the same week. The argument rested on a distinction to be made, according to the Dole companies, between “green banana” and “yellow banana” markets.

The Appellants took issue with the manner in which, at paragraph 134 of the judgment under appeal, the General Court justified that lack of reasoning and expressed the view that the clarifications made in the proceedings before it merely served to elucidate the statement of reasons already contained in the contested decision. The General Court thereby failed, they claimed, to require the Commission to give full and proper reasons for the contested decision and infringed Article 48(2) of its Rules of Procedure. In so doing, the General Court also infringed the Dole companies’ rights of defence.

The Court of Justice dismissed the Appellants’ claim. It pointed out that the General Court had explained that the contested decision was sufficiently reasoned as it was sufficiently clear from that decision that the Commission did not consider the distinction made between alleged green and yellow markets to be relevant.

The Court added that as the Dole companies raised that distinction for the first time in the application initiating the proceedings, the General Court was entitled to take the view, at paragraphs 133 and 134 of the judgment under appeal, that it was open to it, without infringing Article 48(2) of its Rules of Procedure, to permit the Commission to defend its assessment in the contested decision by reference to information provided in the course of the proceedings.

Inadmissibility of an annex

A second issue that came up was the admissibility of a document produced by Dole in an annex to the reply for the first time. The General Court had ruled that the annex was inadmissible. The Appellants contended that the General Court erred in law and infringed their rights of defence by so ruling. They claimed that they sought to contest a number of claims made by the Commission in the defence to the effect that the applicants had made statements which amounted to recognition of the fact that quotation prices were relevant to actual prices. Accordingly, they produced the contested document in an annex, from which they claimed it was apparent that those statements are irrelevant to the present case, as they have been taken out of context. Contrary to what was stated by the General Court in the judgment under appeal, the arguments set out in their reply would have enabled that court to rule on the issue.

The Court of Justice upheld the General Court’s finding as regards the inadmissibility of the annex.

It recalled that for an action before the General Court to be admissible, the basic matters of law and fact relied on must be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law, which must appear in the application itself (judgment in Mastercard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 40 and the case-law cited).

It found that in the present case, that an examination of the case-file at first instance discloses that the General Court was entitled to conclude that the pleadings submitted do not provide any explanation concerning the Dole companies’ claims that the Commission took certain statements out of context, as the reply merely referred to the document in the annex in question and it was not therefore possible for the General Court to adjudicate on the Dole companies’ claims on the basis of their pleadings.