The exchange of information relating to "quotation prices" between competitors can constitute a per se infringement of the competition rules, even when there is no direct connection between this information and the prices these undertakings charge their customers.
On 19 March 2015, the Court of Justice dismissed the appeal of Dole Food against a judgment of the General Court of the European Union. The General Court had convicted Dole Food together with Chiquita and Weichert for coordinating "quotation prices" for bananas in several EU Member States between 2000 and 2002. Quotation prices are, briefly, standard prices on the basis of which negotiations between the supplier and its customers take place. In certain cases, the price charged to the customer was set on the basis of formulae which were linked to the quotation price. Each week (just before they set their quotation prices), the undertakings concerned exchanged information relating to factors relevant to the setting of quotation prices and price trends.
The Court of Justice confirmed that such contacts constitute a restriction of competition by object, because they reduce uncertainty as regards the timing, extent and details of the modifications to be adopted by the undertakings concerned when setting their prices. Practices constituting a restriction of competition by object are prohibited regardless of their effects on the market.
Dole Food had submitted that there was no direct link between the information exchanged and the prices eventually paid by the customers. The Court of Justice, however, confirmed the so-called T-Mobile case law (C-8/08) in which it had ruled that not only concerted practices which have a direct effect on the retail price are prohibited. The banana producers had engaged in bilateral communications relating to quotation prices which served at least as market signals and were relevant for the prices they eventually obtained on the market.
In order to consider contacts between competitors as a prohibited "concerted practice", the competition authority must show a causal link between the communications and the subsequent conduct on the market. The Court of Justice, however, has substantially alleviated the authority's task: undertakings which have exchanged information are presumed to take this information into account when determining their future conduct on the market. It is practically impossible to rebut this presumption.
This judgment illustrates once again the risks of contacting competitors to discuss parameters which could influence competition on the market.