On 24 June 2015, the Court of Justice handed down its appeal judgment in Del Monte (Joined Cases C-293/13 P C-294/13 P Fresh Del Monte Produce v Commission and Commission v Fresh del Monte Produce). Del Monte had been found jointly and severally liable with its joint venture, Weichert, for its participation in the bananas cartel. The Court of Justice dismissed all of the appeal grounds of Del Monte. However, it accepted the Commission's arguments and reversed the General Court's ("GC") finding that the information provided by Del Monte, in response to a request for information, merited a reduction of the fine.
The GC reduced Del Monte's fine given that it found that Weichert had cooperated in the provision of information during the administrative procedure. The Commission had issued under Article 18(2) Regulation 1/2003, a simple request for information to Weichert, which detailed the information to be provided and the timeline. Weichert responded to the request although a simple request under Article 18(2), as opposed to the request for information by decision under Article 18(3), does not place a legal obligation to provide information.
On appeal, the Commission argued that a reduction of the fine may be granted when the undertaking has cooperated beyond its legal obligations. The Commission thus argued that information provided in response to a request under Article 18(2) does not demonstrate "true voluntary cooperation", worthy of a fine reduction.
The Court of Justice followed the reasoning of the Advocate General's Opinion, that a reduction of a fine under the 2002 Leniency Notice is justified only when an undertaking provides information to the Commission "without being asked to do so." Based on settled case law, the information provided "must not only facilitate the Commission's task of establishing the existence of the infringement but also reveal a genuine spirit of cooperation."
The Court of Justice held that because Weichert merely replied to a simple request for information, it did not provide the information without having been requested to do so. Therefore, the Court of Justice found that the GC erred in law and reversed the GC reduction of the fine in relation to both Del Monte and Weichert.
This judgment shows that undertakings interested in cooperating with the Commission in the administrative procedure by providing information voluntarily in order to get a reduction of the fine, would be best advised to do so before an Article 18(2) or (3) request is issued.
