CJEC, February 14, 1978, No 27-76

THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES,

1 United Brands Company (hereinafter referred to as UBC) of New York and its representative United Brands Continental BV (hereinafter referred to as UBCBV by an application registered at the Court on 15 March 1976 petitioned the Court to set aside the Commission decision of 17 December 1975 which was later published in Official Journal L 95 of 9 April 1976 to which the quotations in this judgment refer.

2 For practical reasons in the argumentation which follows the single expression UBC will be used to refer to the applicants.

3 Article 1 of the decision declares that UBC has infringed article 86 of the treaty establishing the European economic community :

(a) by requiring its distributor/ripeners in the Belgo-Luxembourg Economic Union, Denmark, Germany, Ireland and the Netherlands to refrain from reselling its bananas while still green ;

(b) by, in respect of its sales of Chiquita bananas, charging other trading parties, namely distributor/ripeners other than the Scipio group in the member states referred to above, dissimilar prices for equivalent transactions ;

(c) by imposing unfair prices for the sale of Chiquita bananas on its customers in the Belgo-Luxembourg Economic Union, Denmark, the Netherlands and Germany (other than the Scipio group);

(d) by refusing from 10 October 1973 to 11 February 1975 to supply Chiquita bananas to th. Olesen a/s, Valby, Copenhagen, Denmark.

4 Under article 2 a fine of one million units of account is imposed on UBC in respect of the infringement referred to in article 1.

5 article 3 orders UBC :

(a) to bring to an end without delay the infringements referred to in article 1 hereof, unless it has already done so of its own accord.

(b) (i) to inform all its distributor/ripeners in the Belgo-Luxembourg Economic Union, Denmark, Germany, Ireland and the Netherlands that it has ceased to apply the prohibition on the resale of green bananas and inform the Commission that it has done so by not later than 1 February 1976 ;

(ii) to inform the Commission by 20 April 1976 and thereafter twice yearly not later than 20 January and 20 July for a period of two years of the prices charged during the previous six months to customers in the Belgo-Luxembourg Economic Union, Denmark, Germany, Ireland and the Netherlands.

6 UBC's main claims in its application are that the Court should set aside the decision of 17 December 1975 and order the Commission to pay UBC moral damages in the amount of one unit of account and, in the alternative, should, if the decision be upheld, cancel or at least reduce the fine.

7 It puts forward eight submissions in support of its conclusions :

(1) it challenges the analysis made by the Commission of the relevant market, and also of the product market and the geographic market ;

(2) it denies that it is in a dominant position on the relevant market within the meaning of article 86 of the treaty ;

(3) it considers that the clause relating to the conditions of sale of green bananas is justified by the need to safeguard the quality of the product sold to the consumer ;

(4) it intends to show that the refusal to continue to supply the Danish firm th. Olesen was justified ;

(5) it takes the view that it has not charged discriminatory prices ;

(6) it takes the view that it has not charged unfair prices ;

(7) it complains that the administrative procedure was irregular ;

(8) it disputes the imposition of the fine and, in the alternative, asks the Court to reduce it.

8 UBC, after bringing this action, by a separate document made an application dated 18 March 1976 for the adoption of an interim measure under article 185 of the treaty requesting the president of the Court to suspend the enforcement of article 3 (a) and (b), paragraph 1 of the decision until a decision on the application for annulment pending before the Court has been made.

9 By an order of 5 April 1976 the president took note of the parties statements concerning the amendment of the clause relating to the resale of bananas while still green and made the following order :

The suspension of the operation of article 3 (a) and the first indent of article 3 (b) of the decision of the Commission of 17 December 1975 (IV/26699) is granted until judgment is given on the substance of case 27-76, in so far as the applicants have not already of their own accord brought to an end the infringements referred to by the Commission in article 1 of the said decision.

Chapter I - the existence of a dominant position

Section 1 - the relevant market

10 In order to determine whether UBC has a dominant position on the banana market it is necessary to define this market both from the standpoint of the product and from the geographic point of view.

11 The opportunities for competition under article 86 of the treaty must be considered having regard to the particular features of the product in question and with reference to a clearly defined geographic area in which it is marketed and where the conditions of competition are sufficiently homogeneous for the effect of the economic power of the undertaking concerned to be able to be evaluated.

Paragraph 1. The product market

12 As far as the product market is concerned it is first of all necessary to ascertain whether, as the applicant maintains, bananas are an integral part of the fresh fruit market, because they are reasonably interchangeable by consumers with other kinds of fresh fruit such as apples, oranges, grapes, peaches, strawberries, etc. Or whether the relevant market consists solely of the banana market which includes both branded bananas and unlabelled bananas and is a market sufficiently homogeneous and distinct from the market of other fresh fruit.

13 The applicant submits in support of its argument that bananas compete with other fresh fruit in the same shops, on the same shelves, at prices which can be compared, satisfying the same needs : consumption as a dessert or between meals.

14 The statistics produced show that consumer expenditure on the purchase of bananas is at its lowest between June and December when there is a plentiful supply of domestic fresh fruit on the market.

15 Studies carried out by the food and agriculture organization (FAO) (especially in 1975) confirm that banana prices are relatively weak during the summer months and that the price of apples for example has a statistically appreciable impact on the consumption of bananas in the Federal Republic of Germany.

16 Again according to these studies some easing of prices is noticeable at the end of the year during the orange season.

17 The seasonal peak periods when there is a plentiful supply of other fresh fruit exert an influence not only on the prices but also on the volume of sales of bananas and consequently on the volume of imports thereof.

18 The applicant concludes from these findings that bananas and other fresh fruit form only one market and that UBC's operations should have been examined in this context for the purpose of any application of article 86 of the treaty.

19 The Commission maintains that there is a demand for bananas which is distinct from the demand for other fresh fruit especially as the banana is a very important part of the diet of certain sections of the community.

20 The specific qualities of the banana influence customer preference and induce him not to readily accept other fruits as a substitute.

21 The Commission draws the conclusion from the studies quoted by the applicant that the influence of the prices and availabilities of other types of fruit on the prices and availabilities of bananas on the relevant market is very ineffective and that these effects are too brief and too spasmodic for such other fruit to be regarded as forming part of the same market as bananas or as a substitute therefor.

22 For the banana to be regarded as forming a market which is sufficiently differentiated from other fruit markets it must be possible for it to be singled out by such special features distinguishing it from other fruits that it is only to a limited extent interchangeable with them and is only exposed to their competition in a way that is hardly perceptible.

23 The ripening of bananas takes place the whole year round without any season having to be taken into account.

24 Throughout the year production exceeds demand and can satisfy it at any time.

25 Owing to this particular feature the banana is a privileged fruit and its production and marketing can be adapted to the seasonal fluctuations of other fresh fruit which are known and can be computed.

26 There is no unavoidable seasonal substitution since the consumer can obtain this fruit all the year round.

27 Since the banana is a fruit which is always available in sufficient quantities the question whether it can be replaced by other fruits must be determined over the whole of the year for the purpose of ascertaining the degree of competition between it and other fresh fruit.

28 The studies of the banana market on the Court's file show that on the latter market there is no significant long term cross-elasticity any more than - as has been mentioned - there is any seasonal substitutability in general between the banana and all the seasonal fruits, as this only exists between the banana and two fruits (peaches and table grapes) in one of the countries (west Germany) of the relevant geographic market.

29 As far as concerns the two fruits available throughout the year (oranges and apples) the first are not interchangeable and in the case of the second there is only a relative degree of substitutability.

30 This small degree of substitutability is accounted for by the specific features of the banana and all the factors which influence consumer choice.

31 The banana has certain characteristics, appearance, taste, softness, seedlessness, easy handling, a constant level of production which enable it to satisfy the constant needs of an important section of the population consisting of the very young, the old and the sick.

32 As far as prices are concerned two FAO studies show that the banana is only affected by the prices - falling prices - of other fruits (and only of peaches and table grapes) during the summer months and mainly in July and then by an amount not exceeding 20 %.

33 Although it cannot be denied that during these months and some weeks at the end of the year this product is exposed to competition from other fruits, the flexible way in which the volume of imports and their marketing on the relevant geographic market is adjusted means that the conditions of competition are extremely limited and that its price adapts without any serious difficulties to this situation where supplies of fruit are plentiful.

34 It follows from all these considerations that a very large number of consumers having a constant need for bananas are not noticeably or even appreciably enticed away from the consumption of this product by the arrival of other fresh fruit on the market and that even the personal peak periods only affect it for a limited period of time and to a very limited extent from the point of view of substitutability.

35 Consequently the banana market is a market which is sufficiently distinct from the other fresh fruit markets.

Paragraph 2. The geographic market

36 The Commission has taken the Federal Republic of Germany, Denmark, Ireland, the Netherlands and the bleu as the geographic market and it is in respect of this market that it is necessary to consider whether UBC has the power to hinder effective competition.

37 It takes the view that the economic conditions in this part of the community allow importer/distributors of bananas to market their products there in the ordinary course without there being any significant economic barriers for UBC to overcome compared with other importer/distributors.

38 The other member states of the community (France, Italy, the United Kingdom) must however be excluded from this geographic definition of the market notwithstanding the significant presence of UBC in these states, because of the special circumstances relating to import arrangements and trading conditions and the fact that bananas of various types and origin are sold there.

39 The applicant points out that the geographic market where an undertaking's economic and commercial power is taken into consideration should only comprise areas where the conditions of competition are homogeneous.

40 Although the Commission had good reason to exclude France, Italy and the United Kingdom from the said market it failed to take account of the differences in the conditions of competition in the other member states which should have led it to come to the same conclusions with regard to the latter as it came to in the case of the three countries referred to above.

41 In fact three substantially different systems of customs duty apply in the member states concerned : a zero tariff in Germany covering a banana quota which meets most of this country's requirements, a transitional tariff in Ireland and Denmark and the common customs tariff of 20 % for imports into Benelux.

42 The Commission has not either taken account of the consumer habits of the member states concerned the annual consumption of fresh fruits per capita in Germany is equal to 2.5 times that of Ireland and twice that of Denmark), differing commercial patterns, concentrations and monetary points of view.

43 The applicant draws the conclusion from all these findings that the geographic market taken by the Commission includes areas in which the conditions of competition are so different that they cannot be considered as constituting a single market.

44 The conditions for the application of article 86 to an undertaking in a dominant position presuppose the clear delimitation of the substantial part of the common market in which it may be able to engage in abuses which hinder effective competition and this is an area where the objective conditions of competition applying to the product in question must be the same for all traders.

45 The community has not established a common organization of the agricultural market in bananas.

46 Consequently import arrangements vary considerably from one member state to another and reflect a specific commercial policy peculiar to the states concerned.

47 This explains why for example the French market owing to its national organization is restricted upstream by a particular import arrangement and obstructed downstream by a retail price monitored by the administration.

48 This market, in addition to adopting certain measures relating to a target price (prix objectif) fixed each year and to packaging and grading standards and the minimum qualities required, reserves about two thirds of the market for the production of the overseas departments and one third to that of certain countries enjoying preferential relations with France (Ivory Coast, Madagascar, Cameroon) the bananas whereof are imported duty-free, and it includes a system the running of which is entrusted to the Comité Interprofessionnel Bananier (CIB).

49 The United Kingdom market enjoys commonwealth preferences, a system of which the main feature is the maintenance of a level of production favouring the developing countries of the commonwealth and of a price paid to the associations of producers directly linked to the selling price of the green banana charged in the United Kingdom.

50 On the Italian market, since the abolition in 1965 of the state monopoly responsible for marketing bananas, a national system of quota restrictions has been introduced, the ministry for shipping and the exchange control office supervising the imports and the charter parties relating to the foreign ships which carry the bananas.

51 The effect of the national organization of these three markets is that the applicant's bananas do not compete on equal terms with the other bananas sold in these states which benefit from a preferential system and the Commission was right to exclude these three national markets from the geographic market under consideration.

52 On the other hand the six other states are markets which are completely free, although the applicable tariff provisions and transport costs are of necessity different but not discriminatory, and in which the conditions of competition are the same for all.

53 From the standpoint of being able to engage in free competition these six states form an area which is sufficiently homogeneous to be considered in its entirety.

54 UBC has arranged for its subsidiary in Rotterdam - UBCBV - to market its products. UBCBV is for this purpose a single centre for the whole of this part of the community.

55 Transport costs do not in fact stand in the way of the distribution policy chosen by UBC which consists in selling for Rotterdam and Bremerhaven, the two ports where the bananas are unloaded.

56 These are factors which go to make relevant market a single market.

57 It follows from all these considerations that the geographic market as determined by the Commission which constitutes a substantial part of the common market must be regarded as the relevant market for the purpose of determining whether the applicant may be in a dominant position.

Section 2 - UBC's position on the relevant market

58 The Commission bases its view that UBC has a dominant position on the relevant market on a series of factors which, when taken together, give UBC unchallengeable ascendancy over all its competitors : its market share compared with that of its competitors, the diversity of its sources of supply, the homogeneous nature of its product, the organization of its production and transport, its marketing system and publicity campaigns, the diversified nature of its operations and finally its vertical integration.

59 Having regard to all these factors the Commission takes the view that UBC is an undertaking in a dominant position enjoying a degree of general independence in its behaviour on the relevant market which enables it to hinder to a large extent any effective competition from competitors who can only if need be secure the same advantages after great exertions spread over several years, a prospect which does not encourage them to embark upon such a course, especially after failing several times to obtain these advantages.

60 UBC does not accept this conclusion and states that it stems from an assertion unsupported by any evidence.

61 It states that it only engages in fair competition in terms of price, quality and services.

62 According to UBC an objective evaluation of its market share, the opportunities for procuring supplies, the aggressive competition of other undertakings, their resources, their methods and degree of integration, the relative freedom of distributor/ripeners, the appearance of new competitors on the market, the strength and size of certain customers, the low price and indeed the fall in the price of the banana, the losses which it has made for the last five years, would have permitted the conclusion to be drawn that, on the basis of a proper analysis, neither the set up nor the behaviour of its undertaking present the particular features of a firm in a dominant position on the relevant market.

63 Article 86 is an application of the general objective of the activities of the community laid down by article 3 (f) of the treaty: the institution of a system ensuring that competition in the common market is not distorted.

64 This article prohibits any abuse by an undertaking of a dominant position in a substantial part of the common market in so far as it may affect trade between member states.

65 The dominant position referred to in this article relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers.

66 In general a dominant position derives from a combination of several factors which, taken separately, are not necessarily determinative.

67 In order to find out whether UBC is an undertaking in a dominant position on the relevant market it is necessary first of all to examine its structure and then the situation on the said market as far as competition is concerned.

68 In doing so it may be advisable to take account if need be of the facts put forward as acts amounting to abuses without necessarily having to acknowledge that they are abuses.

Paragraph 1. The structure of UBC

69 It is advisable to examine in turn UBC's resources for and methods of producing, packaging, transporting, selling and displaying its product.

70 UBC is an undertaking vertically integrated to a high degree.

71 This integration is evident at each of the stages from the plantation to the loading on wagons or lorries in the ports of delivery and after those stages, as far as ripening and sale prices are concerned, UBC even extends its control to ripener/distributors and wholesalers by setting up a complete network of agents.

72 Aat the production stage UBC owns large plantations in central and South America.

73 In so far as UBC's own production does not meet its requirements it can obtain supplies without any difficulty from independent planters since it is an established fact that unless circumstances are exceptional there is a production surplus.

74 Furthermore several independent producers have links with UBC through contracts for the growing of bananas which have caused them to grow the varieties of bananas which UBC has advised them to adopt.

75 The effects of natural disasters which could jeopardize supplies are greatly reduced by the fact that the plantations are spread over a wide geographic area and by the selection of varieties not very susceptible to diseases.

76 This situation was born out by the way in which UBC was able to react to the consequences of hurricane fifi in 1974.

77 At the production stage UBC therefore knows that it can comply with all the requests which it receives.

78 At the stage of packaging and presentation on its premises UBC has at its disposal factories, manpower, plant and material which enable it to handle the goods independently.

79 The bananas are carried from the place of production to the port of shipment by its own means of transport including railways.

80 At the carriage by sea stage it has been acknowledged that UBC is the only undertaking of its kind which is capable of carrying two thirds of its exports by means of its own banana fleet.

81 Thus UBC knows that it is able to transport regularly, without running the risk of its own ships not being used and whatever the market situation may be, two thirds of its average volume of sales and is alone able to ensure that three regular consignments reach Europe each week, and all this guarantees it commercial stability and well being.

82 In the field of technical knowledge and as a result of continual research UBC keeps on improving the productivity and yield of its plantations by improving the draining system, making good soil deficiencies and combating effectively plant disease.

83 It has perfected new ripening methods in which its technicians instruct the distributor/ripeners of the Chiquita banana.

84 That is another factor to be borne in mind when considering UBC's position since competing firms cannot develop research at a comparable level and are in this respect at a disadvantage compared with the applicant.

85 It is acknowledged that at the stage where the goods are given the final finish and undergo quality control UBC not only controls the distributor/ripeners which are direct customers but also those who work for the account of its important customers such as the Scipio group.

86 Even if the object of the clause prohibiting the sale of green bananas was only strict quality control, it in fact gives UBC absolute control of all trade in its goods so long as they are marketabale wholesale, that is to say before the ripening process begins which makes an immediate sale unavoidable.

87 This general quality control of a homogeneous product makes the advertising of the brand name effective.

88 Since 1967 UBC has based its general policy in the relevant market on the quality of its Chiquita brand banana.

89 There is no doubt that this policy gives UBC control over the transformation of the product into bananas for consumption even though most of this product no longer belongs to it.

90 This policy has been based on a thorough reorganization of the arrangements for production, packaging, carriage, ripening (new plant with ventilation and a cooling system) and sale (a network of agents).

91 UBC has made this product distinctive by large-scale repeated advertising and promotion campaigns which have induced the consumer to show a preference for it in spite of the difference between the price of labelled and unlabelled bananas (in the region of 30 to 40 %) and also of Chiquita bananas and those wich have been labelled with another brand name (in the region of 7 to 10 %).

92 It was the first to take full advantage of the opportunities presented by labelling in the tropics for the purpose of large-scale advertising and this, to use UBC's own words, has revolutionized the commercial exploitation of the banana (annex ii a to the application, p. 10).

93 It has thus attained a privileged position by making Chiquita the premier banana brand name on the relevant market with the result that the distributor cannot afford not to offer it to the consumer.

94 Aat the selling stage this distinguishing factor - justified by the unchanging quality of the banana bearing this label - ensures that it has regular customers and consolidates its economic strength.

95 The effect of its sales networks only covering a limited number of customers, large groups or distributor/ripeners, is a simplification of its supply policy and economies of scale.

96 Since UBC's supply policy consists - in spite of the production surplus - in only meeting the requests for Chiquita bananas parsimoniously and sometimes incompletely UBC is in a position of strength at the selling stage.

Paragraph 2. The situation with regard to competition

97 UBC is the largest banana group having accounted in 1974 for 35 % of all banana exports on the world market.

98 In this case however account must only be taken of its operations on the relevant market.

99 As far as this market is concerned the parties disagree as to the extent of UBC's market share in the Federal Republic of Germany and as to the applicant's entire share of the whole of the relevant market.

100 In the first place UBC does not include in its entire share of the whole of the relevant market the percentage attributed to the Scipio undertaking which buys its bananas FOB in Central America.

101 However it must be included, because almost all the bananas ripened by Scipio are Chiquita bananas the shipment of which to Europe is coordinated by the Sven Salene company, because Scipio submits to UBC's technical supervision, because these two groups have entered into supply and price agreements with each other, because Scipio abides by the obligation not to resell Chiquita bananas while still green and because for the last 30 years it has never attempted to act independently of UBC.

102 There are working arrangements between Scipio and UBC and there is joint action on prices and also on making points of sale attractive and in connexion with advertising campaigns.

103 It must furthermore be recorded that the sale prices charged by Scipio are the same as those of the other suppliers supplied by UBC.

104 consequently UBC and Scipio are not in competition with each other.

105 In the second place the Commission states that it estimates UBC's market share at 45 %.

106 However UBC points out that this share dropped to 41 % in 1975.

107 A trader can only be in a dominant position on the market for a product if he has succeeded in winning a large part of this market.

108 Without going into a discussion about percentages, which when fixed are bound to be to some extent approximations, it can be considered to be an established fact that UBC's share of the relevant market is always more than 40 % and nearly 45 %.

109 This percentage does not however permit the conclusion that UBC automatically controls the market.

110 It must be determined having regard to the strength and number of the competitors.

111 It is necessary first of all to establish that on the whole of the relevant market the said percentage represents grosso modo a share several times greater than that of its competitor castle and cooke which is the best placed of all the competitors, the others coming far behind.

112 This fact together with the others to which attention has already been drawn may be regarded as a factor which affords evidence of UBC's preponderant strength.

113 However an undertaking does not have to have eliminated all opportunity for competition in order to be in a dominant position.

114 In this case there was in fact a very lively competitive struggle on several occasions in 1973 as castle and cooke had mounted a large-scale advertising and promotion campaign with price rebates on the Danish and German markets.

115 At the same time alba cut prices and offered promotional material.

116 Recently the competition of the villeman et tas firm on the Netherlands market has been so lively that prices have dropped below those on the German market which are traditionally the lowest.

117 It must however be recorded that in spite of their exertions these firms have not succeeded in increasing their market share appreciable on the national markets where they launched their attacks.

118 It must be noted that these periods of competition limited in time and space did not cover the whole of the relevant market.

119 Even if the local attacks of some competitors can be described as fierce it can only be placed on record that UBC held out against them successfully either by adapting its prices for the time being (in the Netherlands in answer to the challenge from villeman et tas) or by bringing indirect pressure to bear on the intermediaries.

120 Furthermore if UBC's position on each of the national markets concerned is considered it emerges that, execpt in Ireland, it sells direct and also, as far as concerns Germany, indirectly through Scipio, almost twice as many bananas as the best placed competitor and that there is no appreciable fall in its sales figures even when new competitors appear on these markets.

121 UBC's economic strength has thus enabled it to adopt a flexible overall strategy directed against new competitors establishing themselves on the whole of the relevant market.

122 The particular barriers to competitors entering the market are the exceptionally large capital investments required for the creation and running of banana plantations, the need to increase sources of supply in order to avoid the effects of fruit diseases and bad weather (hurricanes, floods), the introduction of an essential system of logistics which the distribution of a very perishable product makes necessary, economies of scale from which newcomers to the market cannot derive any immediate benefit and the actual cost of entry made up inter alia of all the general expenses incurred in penetrating the market such as the setting up of an adequate commercial network, the mounting of very large-scale advertising campaigns, all those financial risks, the costs of which are irrecoverable if the attempt fails.

123 Thus, although, as UBC has pointed out, it is true that competitors are able to use the same methods of production and distribution as the applicant, they come up against almost insuperable practical and financial obstacles.

124 That is another factor peculiar to a dominant position.

125 However UBC takes into account the losses which its banana division made from 1971 to 1976 - whereas during this period its competitors made profits - for the purpose of inferring that, since dominance is in essence the power to fix prices, making losses is inconsistent with the existence of a dominant position.

126 An undertaking's economic strength is not measured by its profitability ; a reduced profit margin or even losses for a time are not incompatible with a dominant position, just as large profits may be compatible with a situation where there is effective competition.

127 The fact that UBC's profitability is for a time moderate or non-existent must be considered in the light of the whole of its operations.

128 The finding that, whatever losses UBC may make, the customers continue to buy more goods from UBC which is the dearest vendor, is more significant and this fact is a particular feature of the dominant position and its verification is determinative in this case.

129 The cumulative effect of all the advantages enjoyed by UBC thus ensures that is has a dominant position on the relevant market.

Chapter II - abuse of this dominant position

Section 1 conduct vis-a-vis the ripeners

Paragraph 1. The clause prohibiting the resale of bananas while still green

130 The Commission takes the view that the applicant has abused its dominant position vis-a-vis ripener/distributors in the first place by using a clause incorporated in its general conditions of sale forbidding its distributor/ripeners to resell its bananas while still green, to sell bananas other than those supplied by UBC while they were distributors of UBC's bananas and to resell UBC's bananas to competing ripeners.

131 The Commission in the second place blames UBC for having insisted that its ripener/distributors should not sell bananas to dealers from other countries and giving them an assurance that it had imposed the same requirement on its distributor/ripeners in other countries.

132 This abuse was brought into practice in January 1967 when UBC was endeavouring to launch in Europe the new cavendish valery banana under the Chiquita brand name which was taking the place of the gros michel variety known under the fyffes label.

133 The prohibition on reselling of bananas while still green has been applied strictly since 1967, although it does not always appear in a written document, in all the member states forming the relevant market to UBC's importer/ripener/distributors including the Scipio group.

134 There was an example of this prohibition in December 1973 when UBC refused to sell to the Danish firm olesen which found that all the distributors (including the Scipio group) whom it had requested to supply it with green bananas turned down its requests because they were prevented from doing so under their contracts.

135 Apart from the fact that this obligation indirectly helps to strengthen and consolidate UBC's dominant position, it makes any trade in UBC's green bananas whether branded or not, either within a single state or between member states, almost impossible. Thus this clause has a similar effect as a prohibition of exports.

136 The effect of this clause is further increased by the policy adopted by UBC of only supplying its customers with smaller quantities of bananas than those which they have ordered and this makes it impossible for them to take any competitive action against the difference in prices from one member state to another and forces them to confine themselves to their role of ripeners.

137 According to the Commission these prohibitions and practices are both the essential constituent of an overall system enabling the applicant to control the entire marketing of its product and to restrict competition and also form the basis of the three other abuses for which UBC is blamed.

138 It was not until the month (31 January 1976) following the decision of 17 December 1975, which found that the applicant had infringed article 86 of the treaty, (and therefore before 1 February 1976, the last date fixed by the Commission by which the applicant had to inform it that it had ceased to apply the prohibition on the resale of green bananas) that the applicant sent a circular letter to all its established customers on the relevant market to the effect that the object of the clause had never been to forbid the sale by a duly appointed ripener to another Chiquita ripener of green Chiquita bananas or the resale of unbranded green bananas.

139 The applicant points out in answer to these complaints that the clause at issue was worded as follows for belgium, Denmark and the Netherlands : bananas can only be resold when they are ripe (the Danish clause states that only bananas of picture no 3 can be resold).

140 The clause relating to the Netherlands was notified to the Commission on 15 November 1968 as follows : the sale of bananas supplied by us to competing ripeners is not allowed.

141 The applicant is surprised that the Commission did not request it to give the wording of the conditions of sale and if necessary amend it for the purpose of considering whether the applicant could be exempted under article 85-3 and that it took the Commission seven years to prepare and finalize its decision finding that there had been an infringement.

142 The only purpose of this clause was to protect the brand name and therefore ultimately the consumers by ensuring that the quality of the products - selected and labelled in the tropics - is exemplary, by reserving them for experienced ripeners who have adequate ripening installations, apply advanced technical methods perfected by UBC's engineers and accept their supervision, and to bring Chiquita bananas on to the market when their quality is at its peak.

143 This clause has never been understood as being a prohibition of exports and has never been applied nor enforced as such.

144 The applicant never intended to impose sanctions in the event of non- compliance.

145 Furthermore dealers in bananas sell an extremely perishable semi-finished product which owing to its nature must be ripened immediately rather than dealt in horizontally and trade in ripe bananas - if there was any - could only be marginal.

146 The ripener's function is only to ripen the bananas and distribute them to the retailers.

147 Moreover the ripener's gross profit margin is greater than the profits which he could make by speculating on the average price differences between the various markets except for some weeks each year and it is not therefore in his interest to effect horizontal sales of green bananas.

148 The olesen case is the only one in which it would appear that the clause was invoked.

149 This was an exceptional case which arose out of a dispute between UBC and this Danish ripener in circumstances different from those in which the prohibition of the sale of green bananas is applied.

150 In any case the order to delete the clause, which was imposed on the applicant, appears to it to be unreasonable and unjustified, because, since it does not have any ripening installation of its own - except spiers in Belgium representing. 3.3 % of the ripening capacity of the relevant market - it would be unable to guarantee the quality of its bananas to the consumer and this would lead to the collapse of its entire commercial policy.

151 The Court's examination must be limited to the clause relating to the prohibition of the resale of green bananas in the form in which it was notified to the Commission on 15 November 1968 without it being necessary to consider the clause as drawn up by UBC on 31 January 1976, that is to say at a date subsequent to the Commission's decision.

152 The clause applied in Belgium, Denmark and the Netherlands, in so far as it has been drawn up in writing, prohibited the resale of bananas while still green whether branded or unbranded and even between ripeners of Chiquita bananas.

153 Since UBC thought it should state in the circular letter of 31 January 1976, which it sent to all ripener/distributors including those established in Germany, that the clause had not been put in writing for Germany, it thereby impliedly acknowledges that the said clause was in force on the German market, since it had clearly been implied or mentioned orally.

154 Under the terms of the clause UBC required their customers to ensure forthwith that the bananas in their possession are not resold to foreign dealers ; it had imposed the same requirement on its foreign customers as far as the Netherlands are concerned. It would not hesitate to take such steps as it deems to be necessary if the foregoing is not complied with in some way or other.

155 This wording implies that UBC, far from rejecting the idea of imposing sanctions on duly appointed ripener/distributors which do not comply with its directions, held out this possibility as a threat.

156 Moreover olesen unquestionably experienced the harsh effects of this clause after UBC refused to supply it and it wanted to obtain supplies of Chiquita bananas from Scipio and the duly appointed Danish distributors.

157 To impose on the ripener the obligation not to resell bananas so long as he has not had them ripened and to cut down the operations of such a ripener to contacts only with retailers is a restriction of competition.

158 Although it is commendable and lawful to pursue a policy of quality, especially by choosing sellers according to objective criteria relating to the qualifications of the seller, his staff and his facilities, such a practice can only be justified if it does not raise obstacles, the effect of which goes beyond the objective to be attained.

159 In this case, although these conditions for selection have been laid down in a way which is objective and not discriminatory, the prohibition on resale imposed upon duly appointed Chiquita ripeners and the prohibition of the resale of unbranded bananas - even if the perishable nature of the banana in practice restricted the opportunities of reselling to the duration of a specific period of time - when without any doubt an abuse of the dominant position since they limit markets to the prejudice of consumers and affects trade between member states, in particular by partitioning national markets.

160 Thus UBC's organization of the market confined the ripeners to the role of suppliers of the local market and prevented them from developing their capacity to trade vis-a-vis UBC, which moreover tightened its economic hold on them by supplying less goods than they ordered.

161 It follows from all these considerations that the clause at issue forbidding the sale of green bananas infringes article 86 of the treaty.

162 On this point the contested decision is therefore justified.

Paragraph 2. The refusal to continue supplies to olesen

163 The Commission is of the opinion that UBC has infringed article 86 of the treaty by refusing to continue supplies of Chiquita bananas to olesen from 10 October 1973 to 11 February 1975

164 According to a telex message of 11 October 1973 from UBC to olesen these supplies were discontinued because the ripener/distributor took part in an advertising campaign mounted during October 1973 in Denmark for dole bananas.

165 Following this discontinuance of supplies olesen applied in vain to UBC's seven other ripener/distributors in Denmark and also to a company of the Scipio group in Hamburg for green Chiquita bananas.

166 It has suffered considerable damage as a result of this situation due to losses of sales and several important customers including l'Association des coopérateurs (FDB) which bought 50 % of its bananas.

167 On 11 February 1975 UBC and olesen entered into an agreement under which UBC undertook to resume supplies of bananas to olesen and the latter withdrew the complaint which it had lodged with the Commission.

168 The Commission regards this refusal to continue supplies to olesen, which cannot be justified objectively, as an arbitrary interference in the management of the olesen business which has caused it to suffer damage and was designed to dissuade UBC's ripeners from selling bananas bearing competing brand names or at least from advertising them and these are facts which amount to an infringement of article 86 of the treaty.

169 The applicant claims that the marketing policy it pursues is more liberal than that of its competitors.

170 Its ripeners are free to sell products bearing competing brand names, to advertise these products, to reduce their orders, to cancel them and to terminate their relations when they think fit.

171 The olesen incident must be seen in this setting.

172 In 1967, since the latter had become the largest importer of Chiquita bananas in Denmark, it put pressure on UBC to give it preferential treatment compared with the seven other Danish ripeners duly appointed by the applicant.

173 When UBC refused to do so, olesen became in 1969 the exclusive importer/distributor of the standard fruit company.

174 In 1973 standard fruit announced at a press conference that the dole banana was going to oust the Chiquita banana throughout the world.

175 Olesen then sold less and less Chiquita bananas and deliberately pushed the sale of dole bananas. It did not take the same amount of trouble when ripening Chiquita bananas as it did when ripening bananas bearing other brand names.

176 The breach, which was not unexpected and unforeseeable, arose in these circumstances, punctuated by discussions spread over a long period.

177 This breach was therefore fully justified by the fact that if a firm is directly attacked by its main competitor who has succeeded in making one of that firm's most important long standing customers his exclusive distributor for the whole of the country, that firm in its own interest and that of competition has no option but to fight back or else disappear from this national market.

178 The applicant goes on to say that this refusal to sell to olesen, which was justified, was not an abuse, because it did not affect the actual competition on the Danish market which recorded a fall of 40 % in two weeks at the end of 1974 in the retail price of Chiquita bananas as a result of the competition between competitors which was generated by these circumstances.

179 Finally the refusal to sell to olesen did not affect trade between member states, because dole bananas only pass through Germany from Hamburg and Chiquita bananas from bremerhaven.

180 These transactions are not therefore intra-community trade but are in fact trade between Denmark and the third countries where the bananas come from.

181 For all these reasons, since the refusal to sell to olesen is not in itself a specific breach, the applicant takes the view that the finding of an infringement under this head is unjustified.

182 In view of these conflicting arguments it is advisable to assert positively from the outset that an undertaking in a dominant position for the purpose of marketing a product - which cashes in on the reputation of a brand name known to and valued by the consumers - cannot stop supplying a long standing customer who abides by regular commercial practice, if the orders placed by that customer are in no way out of the ordinary.

183 Such conduct is inconsistent with the objectives laid down in article 3 (f) of the treaty, which are set out in detail in article 86, especially in paragraphs (b) and (c), since the refusal to sell would limit markets to the prejudice of consumers and would amount to discrimination which might in the end eliminate a trading party from the relevant market.

184 It is therefore necessary to ascertain whether the discontinuance of supplies by UBC in October 1973 was justified.

185 The reason given is in the applicant's letter of 11 October 1973 in which it upbraided olesen in no uncertain manner for having participated in an advertising campaign for one of its competitors.

186 Later on UBC added to this reason a number of complaints, for example, that olesen was the exclusive representative of its main competitor on the Danish market.

187 This was not a new situation since it goes back to 1969 and was not in any case inconsistent with fair trade practices.

188 Finally UBC has not put forward any relevant argument to justify the refusal of supplies.

189 Although it is true, as the applicant points out, that the fact that an undertaking is in a dominant position cannot disentitle it from protecting its own commercial interests if they are attacked, and that such an undertaking must be conceded the right to take such reasonable steps as it deems appropriate to protect its said interests, such behaviour cannot be countenanced if its actual purpose is to strengthen this dominant position and abuse it.

190 Even if the possibility of a counter-attack is acceptable that attack must still be proportionate to the threat taking into account the economic strength of the undertakings confronting each other.

191 The sanction consisting of a refusal to supply by an undertaking in a dominant position was in excess of what might, if such a situation were to arise, reasonably be contemplated as a sanction for conduct similar to that for which UBC blamed olesen.

192 In fact UBC could not be unaware of that fact that by acting in this way it would discourage its other ripener/distributors from supporting the advertising of other brand names and that the deterrent effect of the sanction imposed upon one of them would make its position of strength on the relevant market that much more effective.

193 Such a course of conduct amounts therefore to a serious interference with the independence of small and medium sized firms in their commercial relations with the undertaking in a dominant position and this independence implies the right to give preference to competitors'goods.

194 In this case the adoption of such a course of conduct is designed to have a serious adverse effect on competition on the relevant banana market by only allowing firms dependant upon the dominant undertaking to stay in business.

195 The applicant's argument that in its view the 40 % fall in the price of bananas on the Danish market shows that competition has not been affected by the refusal to supply olesen cannot be upheld.

196 In fact this fall in prices was only due to the very lively competition - called at the time the banana war - in which the two transnational companies UBC and castle and cooke engaged.

197 The applicant submits that the refusal to supply olesen could not have any effect on intra-community trade because in its view all those bananas coming from third countries (latin America) and merely transiting the common market countries before they reach the member state where they are consumed are not part of intra-community trade.

198 If this argument was valid the whole of UBC's European trade in goods of third countries would not be governed by community law.

199 In fact when olesen's supplies were cut off it was unable to buy Chiquita bananas at bremerhaven and therefore had to import into Denmark the same quantities of bananas as it did before this step was taken.

200 It was forced to buy bananas bearing other brand namens outside Denmark and to import them into Denmark.

201 Furthermore, if the occupier of a dominant position, established in the common market, aims at eliminating a competitor who is also established in the common market, it is immaterial whether this behaviour relates to trade between member states once it has been shown that such elimination will have repercussions on the patterns of competition in the common market.

202 Cconsequently the refusal to supply a long standing regular customer who buys with a view to reselling in another member state has an influence on the normal movement of trade and an appreciable effect on trade between member states.

203 The finding in the decision that UBC has infringed article 86 of the treaty by refusing to supply olesen is therefore justified.

Section 2 - The pricing practice

Paragraph 1. Discriminatory prices

204 All the bananas marketed by UBC under the brand name Chiquita on the relevant market have the same geogrophic origin, belong to the same variety (cavendish valery) and are of almost the same quality.

205 They are unloaded in two ports, Rotterdam and bremerhaven, where unloading costs only differ by a few cents in the dollar per box of 20 kilogrammes, and are resold, except to Scipio and in Ireland, subject to the same conditions of sale and terms of payment after they have been loaded on the buyers'wagons or lorries, the price of a box amounting on average to between 3 and 4 dollars and going up to 5 dollars in 1974.

206 the costs of carriage from the unloading ports to the ripening installations and the amount of any duty payable under the common customs tariff are borne by the purchaser except in Ireland.

207 This being so all those customers going to Rotterdam and bremerhaven to obtain their supplies might be expected to find that UBC offers them all the same selling price for Chiquita bananas.

208 The Commission blames the applicant for charging each week for the sale of its branded bananas - without objective justification - a selling price which differs appreciably according to the member state where its customers are established.

209 This policy of charging differing prices according to the member states for which the bananas are intended has been applied at least since 1971 in the case of customers of the Federal Republic of Germany, the Netherlands and the bleu and was extended in January 1973 to customers in Denmark and in November 1973 to customers in Ireland.

210 The maximum weekly differences recorded between two destinations were on average during the whole of 1971, 17.6 % - in 1972, 11.3 % - in 1973, 14.5 % - in 1974, 13.5 %.

211 The highest weekly differences (per box) were respectively between customers in Germany on the one hand and Belgo-Luxembourg and Netherlands customers on the other hand :

- in 1971 : 32 % and 37 %

- in 1972 : 21 % and 30 %

- in 1973 : 18 % and 43 %

- in 1974 : 25 % and 54 %

And between customers in Denmark on the one hand and Belgo-Luxembourg and Netherlands customers on the other hand :

- in 1973 : 24 % and 54 %

- in 1974 : 16 % and 12 %

212 The price customers in Belgium are asked to pay is on average 80 % higher than that paid by customers in Ireland.

213 The greatest difference in price is 138 % between the delivered Rotterdam price charged by UBC to its customers in Ireland and the for bremerhaven price charged by UBC to its customers in Denmark, that is to say the price paid by Danish customers is 2.38 times the price paid by Irish customers.

214 The Commission treats these facts as an abuse of a dominant position in that UBC has applied dissimilar conditions to equivalent transactions with the other trading parties, thereby placing them at a competitive disadvantage.

215 The applicant states that its prices are determined by market forces and cannot therefore be discriminatory.

216 Further the average difference in the price of Chiquita bananas between the national markets in question was only 5 % in 1975.

217 The price in any given week is calculated so as to reflect as much as possible the anticipated yellow market price in the following week for each national market.

218 This price is fixed by the Rotterdam management after discussions and negotiations between the applicant's local representatives and the ripener/distributors must perforce take into account the different competitive context in which ripener/distributors in the different countries are operating.

219 It finds its objective justification in the average anticipated market price.

220 These price differences are in fact due to fluctuating market factors such as the weather, different availability of seasonal competing fruit, holidays, strikes, government measures, currency denominations.

221 In short the applicant has been asked by the Commission to take appropriate steps to establish a single banana market at a time when it has in fact been unable to do so.

222 According to the applicant as long as the community institutions have not set up the machinery for a single banana market and the various markets remain national and respond to their individual supply/demand situations differences in prices between them cannot be provented.

223 UBC's answers to the Commission's requests for particulars (the letters of 14 may, 13 September, 10 and 11 December 1974 and 13 February 1975) show that UBC charges its customers each week for its bananas sold under the Chiquita brand name a different selling price depending on the member state where the latter carry on their business as ripener/distributors according to the ratios to which the Commission has drawn attention.

224 These price differences can reach 30 to 50 % in some weeks, even though products supplied under the transactions are equivalent (with the exeption of the Scipio group, subject to this observation that the bananas from Scipio's ripening installations are sold at the same price as those sold by independent ripeners)

225 In fact the bananas sold by UBC are all freighted in the same ships, are unloaded at the same cost in Rotterdam or bremerhaven and the price differences relate to substantially similar quantities of bananas of the same variety, which have been brought to the same degree of ripening, are of similar quality and sold under the same Chiquita brand name under the same conditions of sale and payment for loading on to the purchaser's own means of transport and the latter have to pay customs duties, taxes and transport costs from these ports.

226 This policy of discriminatory prices has been applied by UBC since 1971 to customers of Germany, the Netherlands and the bleu and was extended at the beginning of 1973 to customers in Denmark and in November 1973 to customers in Ireland.

227 Although the responsibility for establishing the single banana market does not lie with the applicant, it can only endeavour to take what the market can bear provided that it complies with the rules for the regulation and coordination of the market laid down by the treaty.

228 Once it can be grasped that differences in transport costs, taxation, customs duties, the wages of the labour force, the conditions of marketing, the differences in the parity of currencies, the density of competition may eventually culminate in different retail selling price levels according to the member states, then it follows those differences are factors which UBC only has to take into account to a limited extent since it sells a product which is always the same and at the same place to ripener/distributors who - alone - bear the risks of the consumers'market.

229 The interplay of supply and demand should, owing to its nature, only be applied to each stage where it is really manifest.

230 The mechanisms of the market are adversely affected if the price is calculated by leaving out one stage of the market and taking into account the law of supply and demand as between the vendor and the ultimate consumer and not as between the vendor (UBC) and the purchaser (the ripener/distributors).

231 Thus, by reason of its dominant position UBC, fed with information by its local reprensentatives, was in fact able to impose its selling price on the intermediate purchaser. This price and also the weekly quota allocated is only fixed and notified to the customer four days before the vessel carrying the bananas berths.

232 These discriminatory prices, which varied according to the circumstances of the member states, were just so many obstacles to the free movement of goods and their effect was intensified by the clause forbidding the resale of bananas while still green and by reducing the deliveries of the quantities ordered.

233 A rigid partitioning of national markets was thus created at price levels, which were artificially different, placing certain distributor/ripeners at a competitive disadvantage, since compared with what it should have been competition had thereby been distorted.

234 Consequently the policy of differing prices enabling UBC to apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage, was an abuse of a dominant position.

Paragraph 2. Unfair prices

235 The Commission is of the opinion that UBC has also abused its dominant position by charging its customers in Germany (other than the Scipio group), Denmark, the Netherlands and the bleu unfair prices, which in the circumstances it considers are excessive in relation to the economic value of the product supplied.

236 The policy of partitioning the relevant market has enabled UBC to charge pirces for Chiquita bananas which are sheltered from effective competition and which, bearing in mind that bananas are a food product that is widely consumed, often amount to wide differences in price which cannot be justified objectively.

237 These price differences show that the highest prices are excessive compared with the lowest prices, more especially as the latter yield a profit.

238 Following a letter from UBC of 10 December 1974 it appeared to the Commission to be justifiable, without analysing UBC's costs structure, to treat the prices charged to Irish customers as representative and the differences between the prices CIF Dublin delivered Rotterdam and the other prices charged by UBC for its sales for Rotterdam or bremerhaven show profits of the same order of magnitude as these differences.

239 The prices charged by UBC to its customers in Germany (other than the Scipio group), Denmark, the Netherlands and the bleu are considerably higher, sometimes by as much as 100 %, than the prices charged to customers in Ireland and produce for it a substantial and excessive profit in relation to the economic value of the product supplied.

240 The significance of these observations is accentuated by the fact that there is a 20 to 40 % difference between the price of Chiquita and unbranded bananas, even though the quality of the latter is only sligthly lower than that of labelled bananas and by the fact that the price of unbranded bananas of similar quality sold by its principal competitors is lower even though their undertakings are running at a profit.

241 Having regard to this situation the Commission considers a reduction by UBC of its price levels to prices at least 15 % below the prices it charges its customers in the relevant market, except in Ireland, to be appropriate, since the unfair prices charged currently are an abuse by UBC of its dominant position.

242 The applicant, which does not accept the Commission's argument, lays stress on the very low price of bananas at all stages of the banana chain and illustrates this by the example of a metric ton of bananas which could be imported into Germany in 1956 for dm 697, the price whereof fell in 1973 to dm 458, the difference corresponding to a 50 % reduction in real terms.

243 The argument put forward by the Commission to prove that UBC charges excessive prices is wrong because it is based on the letter of 10 December 1974 pointing out that UBC sold bananas to Irish ripeners at prices allowing it a considerably smaller margin than in some other member states, the wording of which, settled before 31 December 1974, the date of the end of the financial year, has been retracted on two different occasions by the applicant and it appears from a document annexed to the application that the prices charged in Ireland produced a loss for UBC.

244 It is therefore arbitrary for the Commission to proceed on the basis of the prices charged in Ireland for a few months for the purpose of access to the Irish market, which only represented 1.6 % of the total volume of bananas imported during 1974 into the whole of the relevant market, in order to calculate the profits which have been made on the remainder of the relevant market and during the previous years when the prices charged did not allow any profits to be made from 1970 to 1974 inclusive on the relevant market.

245 The applicant takes the view that the difference in the price of branded and unlabelled bananas is justified, because the precautions taken between cutting and sale to the consumer fully explain this difference.

246 It endeavours to prove by another way that there are genuine differences in the quality of Chiquita bananas and those bearing other brand names and that the price difference - averaging 7.4 % between 1970 and 1974 - is justified.

247 It submits that the order to reduce its prices by 15 % is unintelligible, since the prices in question vary each week on the whole of the relevant market, and unworkable, because a reduction of this size would cause it to sell a banana of a higher quality than its competitors below the prices which they charge for theirs.

248 The imposition by an undertaking in a dominant position directly or indirectly of unfair purchase or selling prices is an abuse to which exception can be taken under article 86 of the treaty.

249 It is advisable therefore to ascertain whether the dominant undertaking has made use of the opportunities arising out of its dominant position in such a way as to reap trading benefits which it would not have reaped if there had been normal and sufficiently effective competition.

250 In this case charging a price which is excessive because it has no reasonable relation to the economic value of the product supplied would be such an abuse.

251 This excess could, inter alia, be determined objectively if it were possible for it to be calculated by making a comparison between the selling price of the product in question and its cost of production, which whould disclose the amount of the profit margin ; however the Commission has not done this since it has not analysed UBC's costs structure.

252 The questions therefore to be determined are whether the difference between the costs actually incurred and the price actually charged is excessive, and, it the answer to this question is in the affirmative, whether a price has been imposed which is either unfair in itself or when compared to competing products.

253 Other ways may be devised - and economic theorists have not failed to think up several - of selecting the rules for determining whether the price of a product is unfair.

254 While appreciating the considerable and at times very great difficulties in working out production costs which may sometimes include a discretionary apportionment of indirect costs and general expenditure and which may vary significantly according to the size of the undertaking, its object, the complex nature of its set up, its territorial area of operations, whether it manufactures one or several products, the number of its subsidiaries and their relationship with each other, the production costs of the banana do not seem to present any insuperable problems.

255 In this case it emerges from a study by the united nations conference on trade and development of 10 February 1975 that the pattern of the production, packaging, transportation, marketing and distribution of bananas could have made it possible to compute the approximate production cost of this fruit and accordingly to calculate whether its selling price to ripener/distributors was excessive.

256 The Commission was at least under a duty to require UBC to produce particulars of all the constituent elements of its production costs.

257 The accuracy of the contents of the documents produced by UBC could have been challenged but that would have been a question of proof.

258 The Commission bases its view that prices are excessive on an analysis of the differences - in its view excessive - between the prices charged in the different member states and on the policy of discriminatory prices which has been considered above.

259 The foundation of its argument has been the applicant's letter of 10 December 1974 which acknowledged that the margin allowed by the sale of bananas to Irish ripeners was much smaller than in some other member states and it concluded from this that the amount by which the actual prices for bremerhaven and Rotterdam exceed the delivered Rotterdam prices for bananas to be sold to Irish customers CIF Dublin must represent a profit of the same order of magnitude.

260 Having found that the prices charged to ripeners of the other member states were considerably higher, sometimes by as much as 100 %, than the prices charged to customers in Ireland it concluded that UBC was making a very substantial profit.

261 Nevertheless the Commission has not taken into account in its reasoning several of UBC's letters in which were enclosed a confidential document retracting what is said in its letter of 10 December 1974 and pointing out that the prices charged in Ireland had produced a loss.

262 The applicant also states that the prices charged on the relevant market did not allow it to make any profits during the last five years, except in 1975.

263 these assertions by the applicant are not supported by any accounting documents which prove the consolidated accounts of the UBC group or even by the consolidated accounts for the relevant market.

264 However unreliable the particulars supplied by UBC may be (and in particular the document mentioned previously which works out the losses on the Irish market in 1974 without any supporting evidence), the fact remains that it is for the Commission to prove that the applicant charged unfair prices.

265 UBC's retractation, which the Commission has not effectively refuted, establishes beyond doubt that the basis for the calculation adopted by the latter to prove that UBC's prices are excessive is open to criticism and on this particular point there is doubt which must benefit the applicant, especially as for nearly 20 years banana prices, in real terms, have not risen on the relevant market.

266 Although it is also true that the price of Chiquita bananas and those of its principal competitors is different, that difference is about 7 %, a percentage which has not been challenged and which cannot automatically be regarded as excessive and consequently unfair.

267 In these circumstances it appears that the Commission has not adduced adequate legal proof of the facts and evaluations which formed the foundation of its finding that UBC had infringed article 86 of the treaty by directly and indirectly imposing unfair selling prices for bananas.

268 Article 1 (c) of the decision must therefore be annulled.

Chapter III - Procedural validity

Section 1 - Complaints relating to denial of due process

269 The applicant complains of the speed with which the administrative procedure took place, of material errors in the statement of objections to which it drew the Commission's attention and which have not been rectified - for example the profits it was alleged to have made in Ireland -, of the brevity or ambiguity of the statement of the reasons on which some of the objections such as that relating to unfair prices were based and takes the view that this conduct on the part of the Commission amounts to a breach of the principle of due process.

270 Article 11 of regulation no 99-63-EEC of the Commission of 25 July 1963 states that the latter shall have regard.. . To the time required for preparation of comments, the time limits shall be not less than two weeks.

271 Following a preliminary investigation lasting about one year the administrative procedure was initiated on 19 March 1975.

272 UBC had two months (from 11 April 1975 to 12 June 1975) within which to submit its observations and it is UBC which asked for the hearing which took place on 24 June 1975 as provided for in article 19 (2) of regulation no 17 of the council (first regulation implementing articles 85 & 86 of the treaty) of 6 February 1962.

273 It is evident from these dates that the procedure was carried out within normal time periods and cannot be criticized on the ground that it was rushed.

274 As far as concerns the allegation that the statement of the reasons upon which the objections were based was inadequate article 4 of the said regulation no 99-63 provides that the Commission in its decisions shall deal only with those objections raised undertakings in respect of which they have been afforded the opportunity of making known their views.

275 The statement of objections satisfies this requirement since it sets out, summarily indeed but clearly, the principal facts upon which the Commission relies.

276 In its communication of 19 March 1975 the latter clearly stated the principal facts upon which it based the objections made and indicated to what extent UBC is in a dominant position and has abused it.

277 It does not therefore seem that during the procedure before the Commission there was any breach of the principle of due process.

278 As far as the other objections are concerned they relate to the substance of the case.

279 Consequently this submission is unfounded.

Section 2 - The applicant's claim for damages

280 The applicant complains that the Commission's approach to this proceeding was permeated with bias.

281 In an endeavour to justify this complaint it mentions : the exaggeration of the differences in price between the states in the Commission's finding, the description, which UBC asserts is incorrect, of UBC's progress on the Irish market, a misleading presentation of an FAO study on competition between bananas and summer fruit, the assertion that bananas can only be transported while still green, the wrong presentation of the reduction of supplies to olesen.

282 Consideration of the correctness of these complaints goes to the substance of the case and the parties have developed their views on them at great length.

283 there is no ground for saying that the Commission mentioned these matters tendentiously.

284 The applicant states that it has suffered moral damages owing to the fact that before the Commission adopted the decision, one of its officials made denigrating comment to a newspaper on UBC's commercial conduct which was reproduced by the world press and gave the impression that the alleged infringements had been proved, when in fact the parties concerned had not yet delivered their defences.

285 For this reason the Commission was no longer able to evaluate impartially the facts of the case and the arguments submitted by the applicant.

286 There is nothing on the Court's file to justify the presumption that the contested decision would not have been adopted or would have been different had it not been for these disputed statements which are in themselves regrettable.

287 However there is nothing to indicate that the Commission's conduct was such as to have an adverse effect on the way the procedure is normally carried out.

288 In these circumstances the claim against the Commission for damages must be rejected.

Chapter IV - The sanctions

289 The Commission, for the purpose of imposing a fine of one million units of account for the four infringements which it found UBC had committed, stating that the latter were at the very least negligent, had regard to their gravity and duration and to the size of the undertaking.

290 As far as their gravity is concerned the Commission considered them in their economic and legal setting by taking account of their combined effect and of their consequences which are manifestly inconsistent with the treaty objectives of integrating markets and of the fact that the banana is a product which is widely consumed.

291 As far as the duration of the infringements is concerned the Commission took the view that the prohibition on the sale of bananas while still green only had to be taken into consideration from January 1967 to 15 November 1968 being the date when UBC notified the general conditions of sale for the Netherlands to the Commission.

292 It follows from this that, by reason of UBC's acts after 15 November 1968 which have remained within the scope of the activity described therein, there has accordingly been no negligence on the part of UBC and no fine has been imposed on account of these later acts.

293 Furthermore during the procedure for the adoption of an interim measure on 5 April 1976 the Commission took note of the amendment of the clause at issue while expressing the view that it should have taken action earlier.

294 According to the Commission the refusal by UBC to continue supplies to olesen lasted from 10 October 1973 to 11 February 1975 and the Commission states that it took account of the fact that UBC put an end to this infringement of its own accord.

295 The pricing policy has been applied since at least 1971 to UBC's customers in Germany, the Netherlands and the bleu, since January 1973 to customers in Denmark and since November 1973 to customers in Ireland.

296 Finally according to the Commission the amount of the fine was fixed at one million units of account in the light of UBC's total annual turnover of about two thousand million dollars and its annual turnover in bananas of fifty million dollars on the relevant market and also of the high profits made as a result of its pricing policy.

297 Furthermore in order to compel UBC to put an end to these infringements, in so far as it had not done so of its own accord, the Commission ordered UBC, subject to a penalty payment, to inform all its distributor/ripeners in Germany, Denmark, Ireland, the Netherlands and the bleu that it has ceased to apply the prohibition on the resale of green bananas by not later than 1 February 1976 and to inform the Commission twice yearly for a period of two years of the prices charged during the preceding six months to the same customers.

298 The applicant submits that it did not know that it was in a dominant position, still less that it had abused it, especially as, according to the case-law of the Court to date, only undertakings which were pure monopolies or controlled an overwhelming share of the market have been held to be in a dominant position.

299 UBC is an undertaking which, having engaged for a very long time in international and national trade, has special knowledge of anti-trust laws and has already experienced their severity.

300 UBC, by setting up a commercial system combining the prohibition of the sale of bananas while still green, discriminatory prices, deliveries less than the amounts ordered, all of which was to end in strict partitioning of national markets, adopted measures which it knew or ought to have known contravened the prohibition set out in article 86 of the treaty.

301 The Commission therefore had good reason to find that UBC's infringements were at the very least negligent.

302 The amount of the fine imposed does not seem to be out of proportion to the gravity and duration of the infringements (and also to the size of the undertaking).

303 Account must however be taken of the partial annulment of the decision and the amount fixed by the Commission reduced accordingly.

304 A reduction of the fine to 850 000 (eight hundred and fifty thousand) units of account, to be paid in the national currency of the applicant undertaking whose registered office is situate in the community, that is to say 3 077 000 Netherlands guilders (three million seventy seven thousand Netherlands guilders), appears to be justified.

Costs

305 Under article 69 (2) of the rules of procedure the unsuccessful party shall be ordered to pay the costs if they have been asked for in the successful party's pleading.

306 Under paragraph (3) of this article when each party succeeds on some and fails on other heads or where the circumstances are exceptional the Court may order that the parties bear their own costs in whole or in part.

307 Wwith regard to the costs of the proceedings in the main action the Commission has failed on one of the complaints made against the applicant as a result of the annulment of the corresponding part of the decision.

308 Each party shall bear its own costs.

309 Furthermore an order must be made for payment of the costs of the application for the adoption of an interim measure.

On those grounds,

The Court

Hereby ;

1. Annuls article 1 (c) of Commission decision of 17 December 1975 IV/26699 - Chiquita, (Official Journal L 95 of 9 April 1976).

2. Reduces the amount of the fine imposed on UBC and UBCBV to 850 000 (eight hundred and fifty thousand) units of account, to be paid in the national currency of the applicant undertaking whose registered office is situate in the community, that is to say 3 077 000 Netherlands guilders (three million seventy seven thousand Netherlands guilders).

3. Dismisses the rest of the application.

4. Orders each party to bear its own costs including the costs of the application for the adoption of an interim measure.