JUDGMENT OF THE GENERAL COURT (Fourth Chamber, Extended Composition)
30 March 2022 (*)
(Competition – Agreements, decisions and concerted practices – Market for airfreight – Decision finding an infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport – Coordination of elements of the price of airfreight services (fuel surcharge, security surcharge, payment of commission on surcharges) – Exchange of information – Territorial jurisdiction of the Commission – Rights of the defence – Failure to send a new statement of objections – Single and continuous infringement – Amount of the fine – Value of sales – Gravity of the infringement – Duration of participation in the infringement – Additional amount – Mitigating circumstances – Encouragement of the anticompetitive conduct by public authorities – Follow-my-leader role – Proportionality – Unlimited jurisdiction)
In Case T‑334/17,
Cargolux Airlines International SA, established in Sandweiler (Luxembourg), represented by E. Aliende Rodríguez, lawyer,
applicant,
v
European Commission, represented by N. Khan and A. Dawes, acting as Agents, and by E. MacKenzie, Barrister,
defendant,
APPLICATION under Article 263 TFEU for annulment of Commission Decision C(2017) 1742 final of 17 March 2017 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case AT.39258 – Airfreight) in so far as it relates to the applicant and, in the alternative, for cancellation of the fine imposed on the applicant or a reduction in the amount of that fine,
THE GENERAL COURT (Fourth Chamber, Extended Composition),
composed of H. Kanninen (Rapporteur), President, J. Schwarcz, C. Iliopoulos, D. Spielmann and I. Reine, Judges,
Registrar: S. Bukšek Tomac, Administrator,
having regard to the written part of the procedure and further to the hearing on 28 June 2019,
gives the following
Judgment
I. Background to the dispute
1 The applicant, Cargolux Airlines International SA, is an air transport company operating in the market for airfreight (‘freight’).
2 In the freight sector, airlines provide for the carriage of cargo by air (‘the carriers’). As a general rule, the carriers supply freight services to freight forwarders, who arrange the transport of that cargo on behalf of shippers. In return, those freight forwarders pay the carriers a price consisting, on the one hand, of rates calculated on a per-kilogram basis and negotiated either on a long-term basis (typically one season, namely six months) or on an ad-hoc basis, and, on the other hand, of various surcharges, which are intended to cover certain costs.
3 There are four different types of carrier: (i) those which exclusively operate dedicated freighter airplanes, (ii) those with cargo capacity on passenger flights, (iii) those with both dedicated freighter airplanes and with cargo capacity on passenger flights (combination airlines) and (iv) integrators with dedicated freighter airplanes providing both integrated express delivery services and general cargo services.
4 No carrier is able to serve all major cargo destinations in the world with sufficient frequency, and therefore agreements among carriers enabling them to increase their network coverage or improve their schedules have become common, including in the context of broader commercial alliances between carriers. At the material time, those alliances included, inter alia, the WOW Alliance, which comprised Deutsche Lufthansa AG (‘Lufthansa’), SAS Cargo Group A/S (‘SAS Cargo’), Singapore Airlines Cargo Pte Ltd (‘SAC’) and Japan Airlines International Co. Ltd (‘Japan Airlines’).
A. The administrative procedure
5 On 7 December 2005, the Commission of the European Communities received an application for immunity under the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) lodged by Lufthansa and its subsidiaries, Lufthansa Cargo AG and Swiss International Air Lines AG (‘Swiss’). The application alleged that extensive anticompetitive contacts were being maintained between a number of carriers with regard to:
– the fuel surcharge (‘FSC’), which had been introduced to tackle rising fuel costs;
– the security surcharge (‘SSC’), which had been introduced to address the costs of certain security measures imposed following the terrorist attacks of 11 September 2001.
6 On 14 and 15 February 2006, the Commission carried out unannounced inspections at the premises of various carriers pursuant to Article 20 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1).
7 Following the inspections, a number of carriers, including the applicant, submitted an application under the 2002 notice referred to in paragraph 5 above.
8 On 19 December 2007, after sending a number of requests for information, the Commission addressed a statement of objections to 27 carriers, including the applicant (‘the Statement of Objections’). It stated that those carriers had infringed Article 101 TFEU, Article 53 of the Agreement on the European Economic Area (EEA) and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (‘the EC-Switzerland Air Transport Agreement’) by participating in a cartel relating, in particular, to the FSC, the SSC and a refusal to pay commission on surcharges (‘the refusal to pay commission’).
9 In response to the Statement of Objections, the addressees submitted written observations.
10 An oral hearing was held from 30 June to 4 July 2008.
B. The Decision of 9 November 2010
11 On 9 November 2010, the Commission adopted Decision C(2010) 7694 final relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the [EC-Switzerland Air Transport Agreement] (case COMP/39258 – Airfreight) (‘the Decision of 9 November 2010’). That decision is addressed to 21 carriers (‘the carriers incriminated in the Decision of 9 November 2010’), namely:
– Air Canada;
– Air France-KLM (‘AF-KLM’);
– Société Air France (‘AF’);
– Koninklijke Luchtvaart Maatschappij NV (‘KLM’);
– British Airways plc;
– the applicant;
– Cathay Pacific Airways Ltd (‘CPA’);
– Japan Airlines Corp.;
– Japan Airlines;
– Lan Airlines SA (‘LAN’);
– Lan Cargo SA;
– Lufthansa Cargo;
– Lufthansa;
– Swiss;
– Martinair Holland NV (‘Martinair’);
– Qantas Airways Ltd (‘Qantas’);
– SAS AB;
– SAS Cargo;
– Scandinavian Airlines System Denmark-Norway-Sweden (‘SAS Consortium’);
– SAC;
– Singapore Airlines Ltd (‘SIA’).
12 The objections raised provisionally against the other addressees of the Statement of Objections were abandoned (‘the non-incriminated carriers’).
13 The grounds of the Decision of 9 November 2010 described a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement, covering the territory of the EEA and of Switzerland, by which the carriers incriminated in the Decision of 9 November 2010 had coordinated their behaviour as regards the pricing of freight services.
14 The operative part of the Decision of 9 November 2010, in so far as it related to the applicant, read as follows:
‘Article 1
The following undertakings infringed Article 101 of the TFEU and Article 53 of the EEA Agreement by participating in an infringement that comprised both agreements and concerted practices through which they coordinated various elements of price to be charged for [freight] services on routes between airports within the EEA, for the following periods:
…
e) [the applicant] from 22 January 2001 until 14 February 2006;
…
Article 2
The following undertakings infringed Article 101 of the TFEU by participating in an infringement that comprised both agreements and concerted practices through which they coordinated various elements of price to be charged for [freight] services on routes between airports within the European Union and airports outside the EEA, for the following periods:
…
f) [the applicant] from 1 May 2004 until 14 February 2006;
…
Article 3
The following undertakings infringed Article 53 of the EEA Agreement by participating in an infringement that comprised both agreements and concerted practices through which they coordinated various elements of price to be charged for airfreight services on routes between airports in countries that are Contracting Parties of the EEA Agreement but not Member States and third countries, for the following periods:
…
f) [the applicant] from 19 May 2005 until 14 February 2006;
…
Article 4
The following undertakings infringed Article 8 of the [EC-Switzerland Agreement] by participating in an infringement that comprised both agreements and concerted practices through which they coordinated various elements of price to be charged for [freight] services on routes between airports within the European Union and airports in Switzerland, for the following periods:
…
e) [the applicant] from 1 June 2002 until 14 February 2006;
…
Article 5
For the infringements referred to in Articles 1 to 4 [of the Decision of 9 November 2010], the following fines are imposed:
…
f) [the applicant]: EUR 79 900 000;
…
Article 6
The undertakings listed in Articles 1 to 4 shall immediately bring to an end the infringements referred to in those Articles, in so far as they have not already done so.
They shall refrain from repeating any act or conduct described in Articles 1 to 4, and from any act or conduct having the same or similar object or effect.’
C. The action challenging the Decision of 9 November 2010 before the Court
15 By application lodged at the Registry of the General Court on 24 January 2011, the applicant brought an action seeking annulment of the Decision of 9 November 2010 in so far as the decision concerned it and, in the alternative, reduction of the amount of the fine imposed on it. The other carriers incriminated in the Decision of 9 November 2010, with the exception of Qantas, also brought actions against that decision before the Court.
16 By judgments of 16 December 2015, Air Canada v Commission (T‑9/11, not published, EU:T:2015:994), Koninklijke Luchtvaart Maatschappij v Commission (T‑28/11, not published, EU:T:2015:995), Japan Airlines v Commission (T‑36/11, not published, EU:T:2015:992), Cathay Pacific Airways v Commission (T‑38/11, not published, EU:T:2015:985), Cargolux Airlines v Commission (T‑39/11, not published, EU:T:2015:991), Latam Airlines Group and Lan Cargo v Commission (T‑40/11, not published, EU:T:2015:986), Singapore Airlines and Singapore Airlines Cargo Pte v Commission (T‑43/11, not published, EU:T:2015:989), Deutsche Lufthansa and Others v Commission (T‑46/11, not published, EU:T:2015:987), British Airways v Commission (T‑48/11, not published, EU:T:2015:988), SAS Cargo Group and Others v Commission (T‑56/11, not published, EU:T:2015:990), Air France-KLM v Commission (T‑62/11, not published, EU:T:2015:996), Air France v Commission (T‑63/11, not published, EU:T:2015:993) and Martinair Holland v Commission (T‑67/11, EU:T:2015:984), the Court annulled, in whole or in part, the Decision of 9 November 2010 in so far as it concerned, respectively, Air Canada, KLM, Japan Airlines and Japan Airlines Corp., CPA, the applicant, Latam Airlines Group, SA (formerly Lan Airlines) and Lan Cargo, SAC and SIA, Lufthansa, Lufthansa Cargo and Swiss, British Airways, SAS Cargo, SAS Consortium and SAS, AF-KLM, AF and Martinair. The Court held that that decision was vitiated by a defective statement of reasons.
17 In that regard, the Court held, in the first place, that the Decision of 9 November 2010 was vitiated by contradictions between the grounds and the operative part thereof. The grounds of the decision described a single and continuous infringement relating to all routes covered by the cartel, in which all the carriers incriminated in the Decision of 9 November 2010 had participated. By contrast, the operative part of that decision identified either four separate single and continuous infringements, or just one single and continuous infringement, liability for which was attributed to the carriers which, as regards the routes mentioned in Articles 1 to 4 of the decision, participated directly in the unlawful conduct referred to in each of those articles or were aware of the collusion on those routes and accepted the risk. Neither of those two readings of the operative part of the Decision of 9 November 2010 was consistent with the grounds for the decision.
18 The Court also rejected as incompatible with the grounds of the Decision of 9 November 2010 the alternative reading of the operative part proposed by the Commission, which was that the failure to mention some of the carriers incriminated in the Decision of 9 November 2010 in Articles 1, 3 and 4 of the decision could be explained by the fact that those carriers did not operate the routes referred to in those articles, and that those articles need not be interpreted as referring to separate single and continuous infringements.
19 In the second place, the Court held that the grounds of the Decision of 9 November 2010 contained significant internal inconsistencies.
20 In the third place, after noting that neither of the two possible readings of the operative part of the Decision of 9 November 2010 was consistent with the grounds thereof, the Court considered whether, in the context of at least one of those two possible readings, the internal contradictions of that decision were likely to undermine the applicant’s rights of defence and prevent the Court from conducting its review. As regards the first reading, namely that there were four separate single and continuous infringements, first of all, the Court held that the applicant had not been in a position to understand to what extent the evidence set out in the grounds and relating to the existence of a single and continuous infringement was liable to establish the existence of the four separate infringements found in the operative part, or to contest the sufficiency of that evidence. Secondly, it held that the applicant had not been able to understand the line of reasoning that had led the Commission to find it liable for an infringement, including in respect of routes which they did not operate within the parameters defined by each article of the Decision of 9 November 2010.
D. The contested decision
21 On 20 May 2016, following the annulment ordered by the Court, the Commission sent a letter to the carriers incriminated in the Decision of 9 November 2010 which had brought an action against that decision before the Court to inform them that its Directorate-General (DG) for Competition intended to propose to it the adoption of a new decision in which it would find that they had participated in a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement in relation to all of the routes referred to in that decision.
22 The addressees of the Commission’s letter referred to in paragraph 21 above were invited to make known their views on the Commission DG Competition’s intended decision within one month. All addressees, including the applicant, availed themselves of that possibility.
23 On 17 March 2017, the Commission adopted Decision C(2017) 1742 final relating to a proceeding under Article 101 [TFEU], Article 53 of the EEA Agreement and Article 8 of the [EC-Switzerland Air Transport Agreement] (case AT.39258 – Airfreight) (‘the contested decision’). That decision is addressed to 19 carriers (‘the incriminated carriers’), namely:
– Air Canada;
– AF-KLM;
– AF;
– KLM;
– British Airways;
– the applicant;
– CPA;
– Japan Airlines;
– Latam Airlines Group;
– Lan Cargo;
– Lufthansa Cargo;
– Lufthansa;
– Swiss;
– Martinair;
– SAS;
– SAS Cargo;
– SAS Consortium;
– SAC;
– SIA.
24 In the contested decision, no objections are maintained against the other addressees of the Statement of Objections.
25 The grounds of the contested decision describe a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement, by which the incriminated carriers coordinated their behaviour as regards the pricing of freight services worldwide through the FSC, the SSC and the payment of commission on surcharges.
26 In the first place, in Section 4.1 of the contested decision, the Commission described the ‘basic principles and structure of the cartel’. In recitals 107 and 108 of that decision, the Commission stated that the investigations had uncovered a worldwide cartel based on a network of bilateral and multilateral contacts over a long period of time among competitors regarding the conduct which they had decided on, intended to adopt, or contemplated adopting with regard to various elements of the charges for freight services, namely the FSC, the SSC and the refusal to pay commission. It stated that the common objective of that network of contacts was to coordinate competitors’ pricing behaviour or to reduce uncertainty with regard to their pricing policies (‘the cartel at issue’).
27 According to recital 109 of the contested decision, the objective of the coordinated application of the FSC was to ensure that carriers throughout the world imposed a flat-rate surcharge per kilo for all relevant shipments. A complex network of mainly bilateral contacts among carriers was established to coordinate and monitor the application of the FSC, the precise date of application often, according to the Commission, being decided at local level usually with the principal local carrier taking the lead and others following. That coordinated approach was extended to the SSC and to the refusal to pay commission, with the result that the latter became net revenue for the carriers and created an additional incentive for them to continue with the coordination relating to the surcharges.
28 According to recital 110 of the contested decision, senior management in the head offices of a number of airlines were either directly involved in competitor contacts or regularly informed about them. In the case of the surcharges, the responsible head-office employees were in contact with each other when a change to the surcharge level was imminent. The refusal to pay a commission on surcharges was also confirmed on a number of occasions during contacts at head-office level. There were frequent contacts also at local level, partly better to implement the instructions received from the head offices and to adapt them to the local market conditions, partly to coordinate and implement local initiatives. In this latter case, the head offices generally authorised or were informed of the proposed action.
29 According to recital 111 of the contested decision, carriers contacted each other bilaterally, in small groups and in some instances in large multilateral forums. Local associations of carrier representatives were used, in particular in Hong Kong and Switzerland, to discuss yield-improvement measures and coordinate surcharges. Meetings of alliances, such as the WOW alliance, were also used for such purposes.
30 In the second place, in Sections 4.3, 4.4 and 4.5 of the contested decision, the Commission described the contacts concerning, respectively, the FSC, the SSC and the refusal to pay commission (‘the contacts at issue’).
31 Thus, first, in recitals 118 to 120 of the contested decision, the Commission summarised the contacts relating to the FSC as follows:
‘(118) A network of bilateral contacts built up from late 1999/early 2000 onwards involving a number of airlines that allowed information sharing concerning the actions of the participants throughout the network. Carriers contacted each other regularly to discuss any question that came up concerning the FSC, including changes to the mechanism, changes [to] the FSC level, consequent application of the mechanism, [and] instances when some airlines did not follow the system.
(119) Concerning the implementation of FSC at local level, a system was often applied whereby leading airlines on particular routes or in certain countries would announce the change first, and they would be followed by others …
(120) Anti-competitive coordination concerning the FSC took place mainly in four contexts: concerning the introduction of FSC in early 2000, the reintroduction of a fuel surcharge mechanism after the revocation of the planned [International Air Transport Association (IATA)] mechanism, the introduction of new trigger points (raising the maximum level of FSC) and most frequently at the point where the fuel indices were approaching the level at which an increase or decrease in the FSC would be triggered.’
32 Secondly, in recital 579 of the contested decision, the Commission summarised the contacts relating to the SSC as follows:
‘A number of [incriminated carriers] discussed, among others issues, their plans whether or not to introduce a SSC … Moreover, the amount of the surcharge and the timing of the introduction were also discussed. [The incriminated carriers] furthermore shared with each other ideas concerning the justification to be given to their customers. Ad hoc contacts concerning the implementation of the SSC continued throughout the years 2002-2006. The illicit coordination took place both at head office and local level.’
33 Thirdly, in recital 676 of the contested decision, the Commission stated that the incriminated carriers had ‘continued to refuse commission on the surcharges and [had] confirmed their relevant intentions to each other in the framework of numerous contacts’.
34 In the third place, in Section 4.6 of the contested decision, the Commission carried out the assessment of the contacts at issue. The assessment of those relied on against the applicant is set out in recitals 748 to 754 of that decision.
35 In the fourth place, in Section 5 of the contested decision, the Commission applied Article 101 TFEU to the facts of the case, while stating, in footnote 1289 to that decision, that the considerations adopted applied also to Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement. Thus, first, in recital 846 of that decision, the Commission found that the incriminated carriers had coordinated their conduct or influenced price setting, ‘which ultimately amounting to price fixing with regard to’ the FSC, the SSC and the payment of commission on surcharges. In recital 861 of that decision, the Commission described the ‘overall scheme to coordinate the pricing behaviour for [freight] services’, the investigation of which had revealed the existence of a ‘complex infringement consisting of various actions which [could] be either classified as an agreement or concerted practice, within which the competitors knowingly substituted practical cooperation between them for the risks of competition’.
36 Secondly, in recital 869 of the contested decision, the Commission found that the ‘conduct in question [constituted] a single and continuous infringement of Article 101 of the TFEU’. It thus found that the arrangements at issue pursued a single anticompetitive aim of distorting competition in the freight sector within the EEA, including when coordination took place at local level and experienced local variations (recitals 872 to 876), concerned a ‘single product/service’, namely ‘the provision of [freight] services and the pricing thereof’ (recital 877), concerned the same undertakings (recital 878), were of a single nature (recital 879) and related to three elements, namely the FSC, the SSC and the refusal to pay commission, which were ‘frequently discussed side by side in the same competitor contact’ (recital 880).
37 In recital 881 of the contested decision, the Commission added that ‘the majority of the parties’, including the applicant, were involved in all three elements of the single infringement.
38 Thirdly, in recital 884 of the contested decision, the Commission concluded that the infringement at issue was continuous.
39 Fourthly, in recitals 885 to 890 of the contested decision, the Commission examined the relevance of contacts in third countries and of contacts concerning routes which the carriers had never operated or which they could not legally have operated. It considered that, given the worldwide nature of the cartel at issue, those contacts were relevant to establishing the existence of the single and continuous infringement. In particular, it found that the surcharges were measures of general application that were not route-specific but were intended to be applied on all routes, on a worldwide basis, including routes to and from the EEA and Switzerland. It stated that the refusal to pay commission was equally general in nature. In addition, the Commission considered that there were no insurmountable barriers that prevented carriers from providing freight services on routes which they had never operated or which they could not legally operate, in particular because of the agreements which they were able to conclude between themselves.
40 Fifthly, in recital 903 of the contested decision, the Commission found that the conduct at issue had the object of restricting competition ‘at least in the [European Union], the EEA and Switzerland’. In recital 917 of that decision, the Commission added, in essence, that there was, therefore, no need to take into account the ‘actual effects’ of that conduct.
41 Sixthly, in recitals 972 to 1021 of the contested decision, the Commission examined the legislation of seven third countries, which several of the incriminated carriers maintained had required them to collude on surcharges, thereby impeding the application of the relevant competition rules. The Commission considered that those carriers had failed to prove that they had acted under duress from those third countries.
42 Seventhly, in recitals 1024 to 1035 of the contested decision, the Commission found that the single and continuous infringement was likely to have an appreciable effect on trade between Member States, between Contracting Parties of the EEA Agreement and between Contracting Parties to the EC-Switzerland Air Transport Agreement.
43 Eighthly, the Commission examined the limits of its territorial and temporal jurisdiction to find and penalise an infringement of the competition rules in the present case. On the one hand, in recitals 822 to 832 of the contested decision, under the heading ‘Jurisdiction of the Commission’, the Commission stated, in essence, that it would not apply, first of all, Article 101 TFEU to agreements and practices prior to 1 May 2004 concerning routes between airports within the European Union and airports outside the EEA (‘EU-third country routes’), next, Article 53 of the EEA Agreement to agreements and practices prior to 19 May 2005 concerning EU-third country routes and routes between airports in countries that are Contracting Parties of the EEA Agreement but are not EU Member States and airports in third countries (‘non-EU EEA-third country routes’ and, together with EU-third country routes, ‘EEA-third country routes’), and, lastly, Article 8 of the EC-Switzerland Air Transport Agreement to agreements and practices prior to 1 June 2002 concerning routes between airports within the European Union and Swiss airports (‘EU-Switzerland routes’). It also stated that the contested decision did ‘not purport to find an infringement of Article 8 of the [EC-Switzerland Air Transport Agreement] concerning freight services [between] Switzerland [and] third countries’.
44 On the other hand, in recitals 1036 to 1046 of the contested decision, under the heading ‘The applicability of Article 101 of the TFEU and Article 53 of the EEA Agreement to inbound routes’, the Commission rejected the arguments put forward by the various incriminated carriers that it would exceed the limits of its territorial jurisdiction under the rules of public international law by finding and penalising an infringement of those two provisions on routes from third countries to the European Union or the EEA (‘inbound routes’ and, as regards the freight services offered on those routes, ‘inbound freight services’). In particular, in recital 1042 of that decision, it recalled as follows the criteria which it considered to be applicable:
‘With respect to the extra-territorial application of Article 101 of the TFEU and Article 53 of the EEA Agreement these provisions are applicable to arrangements that are either implemented within the [European Union] (implementation theory) or that have immediate, substantial and foreseeable effects within the [European Union] (effects theory).’
45 In recitals 1043 to 1046 of the contested decision, the Commission applied the criteria in question to the facts of the present case:
‘(1043) In the case of [inbound freight services], Article 101 of the TFEU and Article 53 of the EEA Agreement are applicable because the service itself that is the subject of the price fixing infringement is to be performed and is indeed performed, in part, within the territory of the EEA. Moreover, many contacts by which the addressees coordinated surcharges and the non-payment of commission took place in the EEA or involved participants in the EEA.
(1044) … the example given in the [Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2008 C 95, p. 1)] is not relevant here. [That notice] relates to the geographic allocation of turnover of undertakings for the purpose of establishing whether the turnover thresholds of Article 1 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings [(OJ 2004 L 24, p. 1)] are met.
(1045) In addition, anticompetitive practices in third countries with regard to … freight transportation to the EU/EEA are liable to have immediate, substantial and foreseeable effects within the EU/EEA, as the increased costs of air transport to the EEA, and consequently higher prices of imported goods, are by their very nature liable to have effects on consumers in the EEA. In this case the anticompetitive practices eliminating competition between carriers offering [inbound freight services] were liable to have such effects also on the provision of [freight] services by other carriers within the EEA, between the different hub airports used by carriers from third countries in the EEA and airports of destination of those shipments in the EEA to which the carrier from the third country does not fly.
(1046) Finally, it has to be underlined that the Commission has found a world-wide cartel. The cartel was implemented globally and the cartel arrangements concerning inbound routes formed an integral part of the single and continuous infringement of Article 101 of the TFEU and Article 53 of the EEA Agreement. The cartel arrangements were in many cases organised centrally and the local personnel were merely implementing them. The uniform application of the surcharges on a world wide scale was a key element of the cartel.’
46 In the fifth place, in recital 1146 of the contested decision, the Commission found that the cartel at issue had started on 7 December 1999 and lasted until 14 February 2006. In the same recital, it stated that that cartel had infringed:
– Article 101 TFEU, from 7 December 1999 to 14 February 2006, as regards air transport between airports within the European Union;
– Article 101 TFEU, from 1 May 2004 to 14 February 2006, as regards air transport on EU-third country routes;
– Article 53 of the EEA Agreement, from 7 December 1999 to 14 February 2006, as regards air transport between airports within the EEA (‘intra-EEA routes’);
– Article 53 of the EEA Agreement, from 19 May 2005 to 14 February 2006, as regards air transport on non-EU EEA-third country routes;
– Article 8 of the EC-Switzerland Air Transport Agreement, from 1 June 2002 to 14 February 2006, as regards air transport on EU-Switzerland routes.
47 In so far as the applicant is concerned, the Commission found that the duration of the infringement was from 22 January 2001 to 14 February 2006.
48 In the sixth place, in Section 8 of the contested decision, the Commission examined the remedies to be taken and the fines to be imposed.
49 As regards, in particular, its determination of the amount of the fines, the Commission stated that it took into account the gravity and duration of the single and continuous infringement as well as possible aggravating and mitigating circumstances. To that end, it applied the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’).
50 In recitals 1184 and 1185 of the contested decision, the Commission stated that the basic amount of the fine consisted of a proportion of up to 30% of the value of the undertaking’s sales, depending on the gravity of the infringement, multiplied by the number of years of the undertaking’s participation in the infringement, plus an additional amount of between 15 and 25% of the value of sales (‘the additional amount’).
51 In recital 1197 of the contested decision, the Commission determined the value of sales by adding together, for 2005 – that being the last full year of the single and continuous infringement – turnover from flights in both directions on intra-EEA routes, on EU-Switzerland routes, and on non-EU EEA-third country routes. The Commission also took into account the accession of new Member States to the EU in 2004.
52 In recitals 1198 to 1212 of the contested decision, taking into account the nature of the infringement (horizontal price-fixing agreements), the combined market share of the incriminated carriers (34% of worldwide market share and a market share at least as high on intra-EEA and EEA-third country routes), the geographic scope of the cartel at issue (worldwide) and the fact that the cartel had actually been implemented, the Commission set the gravity factor at 16%.
53 In recitals 1214 to 1217 of the contested decision, the Commission determined the duration of the applicant’s participation in the single and continuous infringement as follows, according to the routes concerned:
– in so far as concerned intra-EEA routes, from 22 January 2001 to 14 February 2006, equating to five years and giving rise to a multiplier of five;
– in so far as concerned EU-third country routes, from 1 May 2004 to 14 February 2006, equating to one year and nine months and giving rise to a multiplier of 19⁄12;
– in so far as concerned EU-Switzerland routes, from 1 June 2002 to 14 February 2006, equating to three years and eight months and giving rise to a multiplier of 38⁄12;
– in so far as concerned non-EU EEA-third country routes, from 19 May 2005 to 14 February 2006, equating to eight months and giving rise to a multiplier of 8⁄12.
54 In recital 1219 of the contested decision, the Commission found that, given the specific circumstances of the case and taking into account the criteria mentioned in paragraph 52 above, the additional amount should be set at 16% of the value of sales.
55 Consequently, in recitals 1240 to 1242 of the contested decision, the basic amount to be imposed on the applicant was assessed at EUR 408 000 000 and, after a reduction of 50% on the basis of point 37 of the 2006 Guidelines (‘the general 50% reduction’) to reflect the fact that part of the services relating to inbound routes and outbound routes from the EEA to third countries (‘outbound routes’) was performed outside the territory covered by the EEA Agreement and that part of the harm was therefore likely to have occurred outside that territory, the basic amount of the applicant’s fine was fixed at EUR 204 000 000.
56 In recitals 1264 and 1265 of the contested decision, in accordance with point 29 of the 2006 Guidelines, the Commission granted the incriminated carriers an additional reduction of 15% in the basic amount of the fine (‘the general 15% reduction’) on the ground that certain regulatory regimes had encouraged the cartel at issue.
57 Consequently, in recital 1293 of the contested decision, the Commission set the basic amount of the applicant’s fine, after adjustment, at EUR 173 400 000.
58 In recitals 1294 to 1296 of the contested decision, having regard to the second subparagraph of Article 23(2) of Regulation No 1/2003, in accordance with which the fine is not to exceed 10% of the total turnover which each undertaking or association of undertakings has achieved in the previous business year, and to the procedural nature of the annulment of the Decision of 9 November 2010, the Commission found that a reduction in the adjusted basic amounts of the fines was necessary where that amount was above 10% of the worldwide turnover achieved in 2009, so that none of the incriminated carriers would receive a higher fine than that imposed by the Decision of 9 November 2010. The Commission considered it fair to use its discretion and reduce the adjusted basic amount of the fine to 10% of worldwide turnover in 2009 where that figure was lower than the worldwide turnover of the incriminated carrier in 2016. The Commission consequently reduced the adjusted basic amount of the applicant’s fine to EUR 94 000 000.
59 In recitals 1355 to 1362 of the contested decision, the Commission took into account the applicant’s contribution in the context of its leniency application and applied a reduction of 15% to the amount of the fine, with the result that, as stated in recital 1404 of the contested decision, the amount of the fine imposed on the applicant was set at EUR 79 900 000.
60 The operative part of the contested decision, in so far as it relates to this dispute, reads as follows:
‘Article 1
By coordinating their pricing behaviour in the provision of [freight] services on a global basis with respect to the [FSC], the [SSC] and the payment of commission payable on surcharges, the following undertakings have committed the following single and continuous infringement of Article 101 [TFEU], Article 53 of [the EEA Agreement] and Article 8 of [the EC-Switzerland Air Transport Agreement] as regards the following routes and for the following periods.
(1) The following undertakings have infringed Article 101 of the TFEU and Article 53 of [the] EEA Agreement as regards [intra-EEA routes], for the following periods:
…
(f) [the applicant] from 22 January 2001 until 14 February 2006;
…
(2) The following undertakings infringed Article 101 of the TFEU as regards [EU-third country routes], for the following periods:
…
(f) [the applicant] from 1 May 2004 until 14 February 2006;
…
(3) The following undertakings infringed Article 53 of the EEA Agreement as regards [non-EU EEA-third country routes], for the following periods:
…
(f) [the applicant] from 19 May 2005 until 14 February 2006;
…
(4) The following undertakings infringed Article 8 of the [EC-Switzerland Agreement] as regards [EU-Switzerland routes], for the following periods:
…
(f) [the applicant] from 1 June 2002 until 14 February 2006;
…
Article 2
[The Decision of 9 November 2010] is amended as follows:
In Article 5, points (j), (k) and (l) are repealed.
Article 3
For the single and continuous infringement referred to in Article 1 (and as regards British Airways … also for the aspects of Articles 1 to 4 of [the Decision of 9 November 2010] that have become final), the following fines are imposed:
…
(f) [the applicant]: EUR 79 900 000;
…
Article 4
The undertakings listed in Article 1 shall immediately bring to an end the single and continuous infringement referred to in that Article in so far as they have not already done so.
They shall also refrain from repeating any act or conduct having the same or similar object or effect.
Article 5
This Decision is addressed to:
…
[the applicant]
…’
II. Procedure and forms of order sought
61 By application lodged at the Registry of the General Court on 31 May 2017, the applicant brought the present action.
62 The Commission lodged its defence at the Court Registry on 29 September 2017.
63 The applicant lodged its reply at the Court Registry on 29 January 2018.
64 The Commission lodged its rejoinder at the Court Registry on 23 March 2018.
65 On 24 April 2019, on a proposal from the Fourth Chamber, the Court decided, pursuant to Article 28 of its Rules of Procedure, to assign the present case to a chamber sitting in extended composition.
66 On 12 June 2019, in the context of the measures of organisation of procedure laid down in Article 89 of the Rules of Procedure, the Court put written questions to the parties. The parties replied within the prescribed period.
67 At the hearing on 28 June 2019, the parties presented oral argument and answered the questions put by the Court.
68 By order of 2 August 2019, the General Court (Fourth Chamber, Extended Composition) adopted, on the basis of Article 91(b) and of Article 92(3) of the Rules of Procedure, a measure of inquiry ordering the Commission to produce an extract of the confidential oral statements made by AF in the context of its leniency application. The Commission complied with that request within the prescribed period.
69 On 29 August 2019, the applicant’s representative consulted at the Court Registry the extract of the confidential oral statements referred to in paragraph 68 above.
70 By decision of 24 October 2019, the Court closed the oral part of the procedure.
71 By order of 31 July 2020, the Court (Fourth Chamber, Extended Composition), considering that it lacked sufficient information and that it was necessary to invite the parties to submit their observations concerning an argument which had not been debated between them, ordered the reopening of the oral part of the procedure pursuant to Article 113 of the Rules of Procedure.
72 The parties replied within the prescribed period to a series of questions put by the Court on 4 August 2020, and then submitted observations on their respective replies.
73 By decision of 6 October 2020, the Court again closed the oral part of the procedure.
74 The applicant claims, in essence, that the Court should:
– annul, in whole or in part, Article 1 of the contested decision in so far as it concerns the applicant;
– cancel or reduce the fine imposed on it in Article 3(f) of the contested decision or, in the alternative, substantially reduce the amount of that fine, by virtue of its unlimited jurisdiction under Article 261 TFEU;
– ‘make the necessary consequential orders in respect of Article 4 in so far as it concerns the applicant’;
– order the Commission to pay the costs.
75 The Commission contends, in essence, that the Court should:
– dismiss the action;
– alter the amount of the fine imposed on the applicant by withdrawing the benefit of the general 50% reduction and the general 15% reduction, should the Court find that the turnover from the sale of inbound freight services could not be included in the value of sales;
– order the applicant to pay the costs.
III. Law
76 In its action, the applicant puts forward both a claim for annulment of the contested decision and a claim for the fine imposed on it to be cancelled or reduced. The Commission, for its part, made an application seeking, in essence, an alteration of the amount of the fine imposed on the applicant, should the Court find that the turnover from the sale of inbound freight services could not be included in the value of sales.
A. The claim for annulment
77 By its first two heads of claim, the applicant seeks, in essence, annulment of Article 1(1) to (4)(f) and Article 3(f) of the contested decision. By its third head of claim, it asks the Court to ‘make the necessary consequential orders in respect of Article 4 in so far as it concerns the applicant’. Unless it is to be interpreted as seeking an injunction which falls outside the jurisdiction of the General Court in the context of the review of legality based on Article 263 TFEU (see judgment of 16 December 2020, Haswani v Council, T‑521/19, not published, EU:T:2020:608, paragraph 50 and the case-law cited), that head of claim must be read as seeking the annulment of Article 4 of that decision, in so far as it concerns the applicant, in the event that the Court upholds the first or second heads of claim.
78 The applicant puts forward seven pleas in law in support of its claim for annulment. Those pleas are as follows:
– the first alleges misuse of powers in relation to the nature of the evidence on which the Commission relied;
– the second alleges a manifest error of assessment and breach of essential procedural requirements and of the right to be heard in connection with the Commission’s failure to issue a new statement of objections before adopting the contested decision;
– the third alleges an error of law and a manifest error of assessment in the application of Article 101 TFEU;
– the fourth alleges a manifest error of assessment, breach of an essential procedural requirement, the duty to state reasons, and of the rights of the defence in connection with the definition of the scope and parameters of the single and continuous infringement;
– the fifth alleges errors of fact and manifest errors of assessment in the finding of an infringement of the competition rules;
– the sixth alleges a lack of jurisdiction on the Commission’s part to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services;
– the seventh alleges errors in the calculation of the amount of the fine.
79 The Court deems it appropriate to examine, first of all, the sixth plea; then, of the Court’s own motion, the plea alleging lack of jurisdiction on the part of the Commission in the light of the EC-Switzerland Air Transport Agreement to find and penalise an infringement on non-EU EEA-Switzerland routes; and, lastly, the first to fifth and the seventh pleas in law in turn.
1. The sixth plea in law, alleging lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services
80 The present plea, by which the applicant claims that the Commission did not have jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services, consists, in essence, of three parts. The first part alleges incorrect interpretation of Council Regulation (EC) No 411/2004 of 26 February 2004 repealing Regulation (EEC) No 3975/87 and amending Regulations (EEC) No 3976/87 and (EC) No 1/2003 in connection with air transport between the Community and third countries (OJ 2004 L 68, p. 1), the second alleges misapplication of the implementation test, and the third alleges misapplication of the qualified effects test.
(a) The first part of the plea, alleging incorrect interpretation of Regulation No 411/2004
81 The applicant argues, in essence, that the Commission does not have jurisdiction under Regulation No 411/2004 to apply Article 101 TFEU to inbound freight services. That regulation conferred powers on the Commission to apply Article 101 TFEU to air transport services to and from the EU without, however, removing the jurisdictional criteria relating to the implementation and effects of the conduct in question within the internal market. The application of Article 101 TFEU to flights on inbound and outbound routes is understandable in the case of passenger air services, which are (almost always) a return service. Freight services, on the other hand, are fundamentally uni-directional. Supply and demand are very different in each direction, freight forwarders are local, prices are negotiated locally and surcharges and fees are applied locally.
82 The Commission disputes the applicant’s arguments.
83 As a preliminary point, it should be recalled that Article 103(1) TFEU confers on the Council of the European Union the power to adopt the appropriate regulations or directives to give effect to the principles set out in Articles 101 and 102 TFEU.
84 In the absence of such legislation, Articles 104 and 105 TFEU apply and impose, in essence, on the authorities in Member States the obligation to apply Articles 101 and 102 TFEU and limit the Commission’s powers in this area to investigating, on application by a Member State or on its own initiative, and in conjunction with the competent authorities of the Member States which lend their assistance to it, cases of suspected infringement of the principles laid down in those provisions and, where appropriate, proposing appropriate measures to bring them to an end (judgment of 30 April 1986, Asjes and Others, 209/84 to 213/84, EU:C:1986:188, paragraphs 52 to 54 and 58).
85 On 6 February 1962, the Council adopted, on the basis of Article [103 TFEU], Regulation No 17, First Regulation implementing Articles [101] and [102 TFEU] (OJ, English Special Edition 1959-1962, p. 87).
86 However, Regulation No 141 of the Council of 26 November 1962 exempting transport from the application of Council Regulation No 17 (OJ, English Special Edition 1959-1962, p. 291) removed the whole of the transport sector from the application of Regulation No 17 (judgment of 11 March 1997, Commission v UIC, C‑264/95 P, EU:C:1997:143, paragraph 44). In those circumstances, in the absence of legislation such as that provided for in Article 103(1) TFEU, Articles 104 and 105 TFEU initially continued to apply to air transport (judgment of 30 April 1986, Asjes and Others, 209/84 to 213/84, EU:C:1986:188, paragraphs 51 and 52).
87 The consequence thereof was a division of powers between the Member States and the Commission for the application of Articles 101 and 102 TFEU as described in paragraph 84 above.
88 It was only in 1987 that the Council adopted a regulation on air transport pursuant to Article 103(1) TFEU. This was Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (OJ 1987 L 374, p. 1), which conferred on the Commission the power to apply Articles 101 and 102 TFEU to international air transport between airports within the European Union, to the exclusion of international air transport between the airports of a Member State and those of a third country (judgment of 11 April 1989, Saeed Flugreisen and Silver Line Reisebüro, 66/86, EU:C:1989:140, paragraph 11). The latter remained subject to Articles 104 and 105 TFEU (see, to that effect, judgment of 12 December 2000, Aéroports de Paris v Commission, T‑128/98, EU:T:2000:290, paragraph 55).
89 The entry into force, in 1994, of Protocol 21 to the EEA Agreement on the implementation of competition rules applicable to undertakings (OJ 1994 L 1, p. 181) extended those rules to the implementation of the competition rules laid down in the EEA Agreement, thus excluding the Commission from being able to apply Articles 53 and 54 of the EEA Agreement to international air transport between airports of States party to the EEA which are not members of the European Union and those of third countries.
90 Regulation No 1/2003 and Decision of the EEA Joint Committee No 130/2004 of 24 September 2004 amending Annex XIV (Competition), Protocol 21 (on the implementation of the competition rules applicable to undertakings) and Protocol 23 (on cooperation between surveillance authorities) to the EEA Agreement (OJ 2005 L 64, p. 57), which subsequently incorporated that regulation into the EEA Agreement, initially left that scheme intact. Article 32(c) of that regulation provided that the latter ‘[did not] apply to air transport between [European Union] airports and third countries’.
91 Regulation No 411/2004, Article 1 of which repealed Regulation No 3975/87 and Article 3 of which repealed Article 32(c) of Regulation No 1/2003, conferred on the Commission the power to apply Articles 101 and 102 TFEU applicable to EU-third country routes as from 1 May 2004.
92 Decision of the EEA Joint Committee No 40/2005 of 11 March 2005 amending Annex XIII (Transport) and Protocol 21 (on the implementation of competition rules applicable to undertakings) to the EEA Agreement (OJ 2005 L 198, p. 38) incorporated Regulation No 411/2004 into the EEA Agreement, conferring on the Commission the power to apply Articles 53 and 54 of the EEA Agreement applicable to non-EU EEA-third country routes from 19 May 2005.
93 In the present case, the parties disagree, in essence, on whether the scope of Regulation No 411/2004 and Decision of the EEA Joint Committee No 40/2005 extends to inbound freight services.
94 In that connection, first of all, it should be noted that, since Regulation No 411/2004 repealed Regulation No 3975/87 and removed Article 32(c) of Regulation No 1/2003, there is no longer an express legal basis that would be such as to justify inbound freight services continuing to be excluded from the scheme introduced by Regulation No 1/2003 and thus remaining subject to the rules laid down in Articles 104 and 105 TFEU.
95 Next, there is nothing in the wording or general scheme of Regulation No 411/2004 to suggest that the legislature intended to maintain the exclusion of inbound freight services from the scope of Regulation No 1/2003. On the contrary, both the title and recitals 1 to 3, 6 and 7 of Regulation No 411/2004 expressly refer to ‘air transport between the [European Union] and third countries’, without any distinction according to whether (i) they are from or to the European Union or (ii) they concern freight or the carriage of passengers.
96 The purpose of Regulation No 411/2004 also argues in favour of including inbound freight services within the scope of that regulation. It is clear from recital 3 of that regulation that the extension of the scope of Regulation No 1/2003 to air transport between the European Union and third countries is based on a twofold finding. First, ‘anti-competitive practices in air transport between the [European Union] and third countries may affect trade between Member States’. Secondly, ‘mechanisms enshrined in [the latter regulation] are equally appropriate for applying the competition rules to air transport between the [European Union] and third countries’. The applicant has neither demonstrated nor even alleged that inbound freight services are, by their very nature, incapable of affecting trade between Member States or are not appropriate for implementing the mechanisms provided for by that regulation.
97 Lastly, the preparatory work for Regulation No 411/2004 confirms that the EU legislature did not intend to draw a distinction either between inbound routes and outbound routes or between freight and passenger transport. It is thus clear from point 10 of the explanatory memorandum of the proposal for the Council regulation repealing Regulation No 3975/87 and amending Regulation (EEC) No 3976/87 and Regulation No 1/2003, in connection with air transport between the [European Union] and third countries (COM/2003/0091 final – CNS 2003/0038), that, ‘the extension of the competition enforcement rules to include also international air transport to and from the [European Union] would afford [carriers] the clear benefit of a common EU-wide enforcement system as to the legality of their agreement under the [EU] competition rules’. In the same paragraph, reference is made to the desire to ensure ‘the airline industry’s need for a level playing field for all air transport activities’.
98 It follows that, contrary to the applicant’s claim, inbound freight services fall within the scope of Regulation No 411/2004 and Decision of the EEA Joint Committee No 40/2005. The Commission did not therefore err in finding, in recital 1041 of the contested decision, that Article 101 TFEU was applicable to air transport between the European Union and third countries ‘in both directions’, and those considerations apply in respect of Article 53 of the EEA Agreement as regards non-EU EEA-third country routes.
99 Accordingly, the first part of the present plea must be rejected.
(b) The second and third parts, alleging, respectively, an error in the application of the implementation test and an error in the application of the qualified effects test
100 It should be observed that, as regards conduct adopted outside the territory of the EEA, the mere existence of directives or regulations referred to in Article 103(1) TFEU is not sufficient to establish the Commission’s jurisdiction under public international law to find and penalise an infringement of Article 101 TFEU or Article 53 of the EEA Agreement.
101 The Commission must also be able to establish that jurisdiction on the basis of the implementation test or the qualified effects test (see, to that effect, judgments of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 40 to 47, and of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraphs 95 to 97).
102 Those tests are alternative and not cumulative and, contrary to what the applicant claims, there is no requirement that the Commission examine its jurisdiction in the light of the first before examining it in the light of the second (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 98; see also, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 62 to 64).
103 In recitals 1043 to 1046 of the contested decision, the Commission relied on both the implementation test and the qualified effects test in order to establish its jurisdiction under public international law to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes.
104 Since the applicant alleges an error in the application of each of those two tests, the Court considers it appropriate to examine, first of all, whether the Commission was entitled to avail itself of the qualified effects test. In accordance with the case-law cited in paragraph 102 above, it is only in the negative that it will be necessary to ascertain whether the Commission was entitled to rely on the implementation test.
105 The applicant submits, in essence, that the Commission may not derive jurisdiction from the qualified effects test to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes.
106 According to the applicant, recourse to the concept of restriction of competition ‘by object’ does not relieve the Commission of its obligation to prove that the conduct in question produced effects in the internal market. The Commission must also demonstrate that those effects result from the concerted practices and anticompetitive agreements, rather than from the conduct ‘as a whole’.
107 However, by referring to recital 1045 of the contested decision to the ‘knock-on effect on internal carriers’ and ‘economic harm to companies and consumers’, the Commission relies on a mere argument of competition policy. The Commission has adduced no evidence to prove such effects, nor has it proven that they were immediate, substantial and foreseeable. On the contrary, in recital 917 of the contested decision, the Commission refused to carry out an appropriate assessment of the effects of the agreements and concerted practices at issue. It is, moreover, very doubtful that the required effects materialised in a sufficiently significant manner in the internal market to justify the Commission finding and penalising an infringement of Article 101 TFEU on inbound routes. Indeed, with no agreement on the total price, carriers can be expected to compete away any supra-competitive increase in surcharges by a corresponding reduction in the headline rate. As for the occurrence within the EEA of contacts relating to surcharges on inbound freight services, they do not in themselves demonstrate the existence of qualified effects in the EEA.
108 In its reply, the applicant adds that the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632), does not contradict that analysis. First, that judgment is based on Article 102 TFEU, which required that the anticompetitive effects of the conduct at issue should be produced ‘within the internal market or in a substantial part of it’, rather than ‘within the internal market’, as is the case for Article 101 TFEU. Secondly, in the decision which gave rise to that judgment, the Commission carried out an extensive analysis of the effects of the conduct at issue on various undertakings and was justified in exercising its jurisdiction on the basis of the qualified effects test because there was an overall strategy to foreclose the most important sales channels in the market.
109 The Commission disputes the applicant’s arguments.
110 In the contested decision, the Commission relied, in essence, on three separate grounds in order to find that the qualified effects test was satisfied in the present case.
111 The first two grounds are set out in recital 1045 of the contested decision. As the Commission confirmed in reply to the written and oral questions put by the Court, those grounds concern the effects of coordination in relation to inbound freight services taken in isolation. The first ground is that the ‘increased costs of air transport to the EEA, and consequently the higher prices of imported goods [were], by their very nature, liable to have effects on consumers in the EEA’. The second ground concerns the effects of coordination in relation to inbound freight services ‘also on the provision of [freight] services by other carriers within the EEA, between the different hub airports used by carriers from third countries in the EEA and airports of destination of those shipments in the EEA to which the carrier from the third country does not fly’.
112 The third ground is set out in recital 1046 of the contested decision and concerns, as is apparent from the Commission’s answers to the written and oral questions put by the Court, the effects of the single and continuous infringement taken as a whole.
113 The Court considers it appropriate to examine both the effects of the coordination in relation to inbound freight services taken in isolation and the effects of the single and continuous infringement taken as a whole, starting with the former.
(1) The effects of coordination in relation to inbound freight services taken in isolation
114 It is appropriate to examine, first of all, the merits of the first ground on which the Commission’s conclusion that the qualified effects test is satisfied in the present case (‘the effect at issue’) is based.
115 In that connection, it should be recalled that, as is apparent from recital 1042 of the contested decision, the qualified effects test allows the application of the EU and EEA competition rules to be justified under public international law when it is foreseeable that the conduct at issue will have an immediate and substantial effect in the internal market or within the EEA (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 49; see also, to that effect, judgment of 25 March 1999, Gencor v Commission, T‑102/96, EU:T:1999:65, paragraph 90).
116 In the present case, the applicant disputes the relevance of the effect at issue (see paragraphs 117 to 134 below), and its foreseeability (see paragraphs 136 to 151 below), its substantiality (see paragraphs 152 to 162 below) and its immediacy (see paragraphs 163 to 170 below).
(i) The relevance of the effect at issue
117 It is clear from the case-law that the fact that an undertaking participating in an agreement or a concerted practice is situated in a third country does not prevent the application of Article 101 TFEU and Article 53 of the EEA Agreement, if that agreement or practice produces its effects, respectively, in the internal market or within the EEA (see, to that effect, judgment of 25 November 1971, Béguelin Import, 22/71, EU:C:1971:113, paragraph 11).
118 The purpose of applying the qualified effects test is precisely to prevent conduct which, while not adopted on the territory of the EEA, has anticompetitive effects liable to have an impact in the internal market or within the EEA (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 45).
119 That test does not require it to be established that the conduct at issue has actually produced effects in the internal market or within the EEA. On the contrary, according to the case-law, it is sufficient to take account of the probable effects of that conduct on competition (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 51).
120 It is for the Commission to ensure the protection of competition in the internal market or within the EEA against threats to the effective functioning thereof.
121 Where conduct has been found by the Commission, as in the present case, to reveal a degree of harmfulness to competition in the internal market or within the EEA such that it could be classified as a restriction of competition by ‘object’ within the meaning of Article 101 TFEU and Article 53 of the EEA Agreement, the application of the qualified effects test also cannot require the demonstration of the actual effects which classification of conduct as a restriction of competition by ‘effect’ within the meaning of those provisions presupposes.
122 In that connection, it should be recalled that the qualified effects test is enshrined in the wording of Article 101 TFEU and Article 53 of the EEA Agreement, which are intended to prevent agreements and practices which limit competition in the internal market and within the EEA, respectively. Those provisions prohibit agreements and practices of undertakings which have as their object or effect the prevention, restriction or distortion of competition ‘within the internal market’ and ‘within the territory covered by [the EEA Agreement]’, respectively (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 42).
123 It is settled case-law that anticompetitive object and anticompetitive effect are not cumulative but alternative conditions for assessing whether conduct falls within the scope of the prohibition laid down in Article 101 TFEU and Article 53 of the EEA Agreement (see, to that effect, judgment of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 28 and the case-law cited).
124 It follows therefrom that, as the Commission observed in recital 917 of the contested decision, there is no need to take account of the actual effects of the conduct at issue once its anticompetitive object has been established (see, to that effect, judgments of 13 July 1966, Consten and Grundig v Commission, 56/64 and 58/64, EU:C:1966:41, p. 342, and of 6 October 2009, GlaxoSmithKline Services and Others v Commission and Others, C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, EU:C:2009:610, paragraph 55).
125 In those circumstances, interpreting the qualified effects test, as the applicant appears to advocate, as requiring proof of the actual effects of the conduct at issue even where there is a restriction of competition by ‘object’, would amount to making the Commission’s jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement subject to a condition which has no basis in the wording of those provisions.
126 The applicant cannot therefore validly claim that the Commission erred in finding that the qualified effects test was satisfied, even though it had, in recitals 917, 1190 and 1277 of the contested decision, stated that it was not required to make any assessment of the anticompetitive effects of the conduct at issue in the light of the anticompetitive object thereof. Nor can the applicant deduce from those recitals that the Commission did not carry out any analysis of the effects produced by that conduct in the internal market or within the EEA for the purposes of applying that test and relied merely on considerations regarding competition policy.
127 In recital 1045 of the contested decision, the Commission considered, in essence, that the single and continuous infringement, in so far as it related to inbound routes, was liable to increase the amount of the surcharges and, consequently, the total price of inbound freight services and that freight forwarders had passed on that additional cost to shippers based in the EEA, who had had to pay a higher price for the goods they had purchased than would have been charged in the absence of that infringement.
128 None of the applicant’s arguments permits the inference that the effect at issue was not among the effects produced by the conduct at issue which the Commission was entitled to take into account for the purposes of applying the qualified effects test.
129 The applicant is incorrect in claiming that the conduct at issue, in so far as it related to inbound routes, was not capable of restricting competition in the EEA, on the ground that that conduct took place only in third countries where the freight forwarders who sourced inbound freight services from the incriminated carriers are established.
130 In that connection, it should be noted that the qualified effects test must be applied in the light of the economic and legal context of the conduct at issue (see, to that effect, judgment of 25 November 1971, Béguelin Import, 22/71, EU:C:1971:113, paragraph 13).
131 In the present case, it is apparent from recitals 14, 17 and 70 of the contested decision and from the parties’ replies to the measures of organisation of procedure of the Court that the carriers sell their freight services exclusively or almost exclusively to freight forwarders. As regards inbound freight services, almost all those sales take place at the point of origin of the routes in question, outside the EEA, where those freight forwarders are established. It is apparent from the application that, between 1 May 2004 and 14 February 2006, the applicant achieved only a negligible proportion of its sales of inbound freight services from customers based in the EEA.
132 It must, however, be observed that, although freight forwarders purchase those services, they do so, inter alia, as intermediaries, in order to consolidate them into a package of services, the purpose of which is, by definition, to organise the integrated transport of goods to the territory of the EEA on behalf of shippers. As is apparent from recital 70 of the contested decision, the latter may in particular be the purchasers or owners of the goods transported. It is therefore at the very least likely that, they are established in the EEA.
133 It follows that, provided that the freight forwarders pass any additional costs resulting from the cartel at issue on to the price of their service packages, it is in particular on the competition that occurs between freight forwarders in order to attract those shippers as customers that the single and continuous infringement, in so far as it concerns inbound routes, is liable to be felt and, consequently, it is in the internal market or within the EEA that the effect at issue is liable to materialise.
134 Consequently, the additional cost which shippers might have had to pay and the higher prices of goods imported into the EEA which may have resulted are among the effects produced by the conduct at issue on which the Commission was entitled to rely for the purposes of applying the qualified effects test.
135 In accordance with the case-law cited in paragraph 115 above, the question is therefore whether that effect has the required foreseeability, substantiality and immediacy.
(ii) The foreseeability of the effect at issue
136 The requirement of foreseeability seeks to ensure legal certainty by guaranteeing that the undertakings concerned may not be penalised on account of effects which might indeed result from their conduct, but which they could not reasonably expect to occur (see, to that effect, Opinion of Advocate General Kokott in Otis Gesellschaft and Others, C‑435/18, EU:C:2019:651, point 83).
137 Effects the occurrence of which the members of the cartel at issue ought reasonably to take into consideration on the basis of practical experience thus satisfy the requirement of foreseeability, unlike effects which result from an entirely extraordinary train of events and, therefore, ensue via an atypical causal chain (see, to that effect, Opinion of Advocate General Kokott in KONE and Others, C‑557/12, EU:C:2014:45, point 42).
138 It is apparent from recitals 846, 909, 1199 and 1208 of the contested decision that what is at issue in the present case is collusive horizontal-pricing behaviour, experience of which shows that it leads inter alia to price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers (see, to that effect, judgment of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 51).
139 It is also apparent from recitals 846, 909, 1199 and 1208 of the contested decision that the conduct related to the FSC, the SSC and the refusal to pay commission.
140 In the present case, it was therefore foreseeable for the incriminated carriers that the horizontal fixing of the FSC and the SSC would lead to an increase in the level of those charges. As is apparent from recitals 874, 879 and 899 of the contested decision, the refusal to pay commission was liable to reinforce such an increase. It amounted to a concerted refusal to grant freight forwarders discounts on surcharges, by which the incriminated carriers ‘ensured that pricing uncertainty, which could have arisen from competition on commission payments [in the context of negotiations with freight forwarders], remained suppressed’ (recital 874 of that decision) and thus aimed to eliminate competition in respect of surcharges (recital 879 of that decision).
141 It is apparent from recital 17 of the contested decision that the price of freight services is made up of rates and surcharges, including the FSC and SSC. Unless it were considered that an increase in the FSC and the SSC would, as a result of a sufficiently probable ‘waterbed effect’, be offset by a corresponding reduction in rates and other surcharges, such an increase was, in principle, liable to lead to an increase in the total price of inbound freight services. Since the applicant has merely made assertions, it cannot be found that it has established that a ‘waterbed effect’ was so probable as to render the effect at issue unforeseeable.
142 In those circumstances, the members of the cartel at issue could reasonably have foreseen that the effect of the single and continuous infringement, in so far as it concerned inbound freight services, would be an increase in the price of freight services on inbound routes.
143 The question is therefore whether it was foreseeable for the incriminated carriers that freight forwarders would pass on such additional costs to their own customers, namely shippers.
144 Furthermore, it is apparent from recitals 14 and 70 of the contested decision that the price of freight services is an input for shippers. That is a variable cost, the increase in which, in principle, has the effect of increasing the marginal cost in the light of which freight forwarders set their own prices.
145 The applicant does not put forward any evidence demonstrating that the circumstances of the present case were not conducive to passing on the additional costs resulting from the single and continuous infringement on inbound routes to shippers downstream.
146 In those circumstances, it was reasonably foreseeable for the incriminated carriers that freight forwarders would pass on such additional costs to shippers through an increase in the price of freight-forwarding services.
147 As is apparent from recitals 70 and 1031 of the contested decision, the cost of goods the integrated transportation of which is generally organised by freight forwarders on behalf of shippers incorporates the price of freight-forwarding services, and in particular the cost of freight services which are a constituent element thereof.
148 In the light of the foregoing, it was therefore foreseeable for the incriminated carriers that the single and continuous infringement would, in so far as it related to inbound routes, have the effect of increasing the price of imported goods.
149 For the reasons set out in paragraph 132 above, it was equally foreseeable for the incriminated carriers that, as is apparent from recital 1045 of the contested decision, that effect would occur in the EEA.
150 Since the effect at issue was part of the normal course of events and economic rationale, it was not, contrary to what the applicant maintained at the hearing, in any way necessary for the applicant to have precise knowledge of the functioning of the downstream markets in order to be able to predict it.
151 It must therefore be concluded that the Commission has established to the requisite standard that the effect at issue was foreseeable.
(iii) The substantiality of the effect at issue
152 The assessment of whether the effects produced by the conduct at issue are substantial must be carried out in the light of all the relevant circumstances of the case. Those circumstances include, inter alia, the duration, nature and scope of the infringement. Other circumstances, such as the size of the undertakings which participated in that conduct, may also be relevant (see, to that effect, judgments of 9 September 2015, Toshiba v Commission, T‑104/13, EU:T:2015:610, paragraph 159, and of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 112).
153 Where the effect examined relates to an increase in the price of a finished product or service derived from or containing the cartelised service, the proportion of the price of the finished product or service represented by the cartelised service may also be taken into account.
154 In the present case, in the light of all the relevant circumstances, it must be held that the effect at issue, relating to the increase in the price of goods imported into the EEA, is substantial.
155 In the first place, it is apparent from recital 1146 of the contested decision that the duration of the single and continuous infringement amounts to 21 months in so far as it concerned EU-third country routes, and 8 months in so far as it concerned the non-EU EEA-third country routes. It is apparent from recitals 1215 and 1217 of that decision that this is also the duration of all the incriminated carriers’ participation, with the exception of Lufthansa Cargo and Swiss.
156 In the second place, as regards the scope of the infringement, it is apparent from recital 889 of the contested decision that the FSC and the SSC were ‘measures of general application that [were] not route specific’ and ‘were intended to be applied on all routes, on a worldwide basis, including routes to … the EEA’.
157 In the third place, as regards the nature of the infringement, it is apparent from recital 1030 of the contested decision that the object of the single and continuous infringement was to restrict competition between the incriminated carriers, inter alia on EEA-third country routes. In recital 1208 of that decision, the Commission concluded that the ‘fixing of various elements of the price, including particular surcharges, constitute[d] one of the most harmful restrictions of competition’ and therefore found that the single and continuous infringement merited the application of a gravity factor ‘at the higher end of the scale’ provided for in the 2006 Guidelines.
158 For the sake of completeness, as regards the proportion of the price of the cartelised service in the product or service which is derived from it or contains it, it should be noted that, contrary to the applicant’s submission, during the infringement period the surcharges represented a significant proportion of the total price of freight services.
159 It is apparent from a letter of 8 July 2005 from the Hong Kong Association of Freight Forwarding & Logistics to the Chairman of the Cargo Sub-Committee (‘the CSC’) of the Board of Airline Representatives (‘the BAR’) in Hong Kong, that the surcharges represent a ‘very significant part’ of the total price of the air waybills which the freight forwarders were required to pay.
160 As is apparent from recital 1031 of the contested decision, the price of freight services was itself a ‘significant cost element of the goods transported that has an impact on their sale’.
161 Again for the sake of completeness, as regards the size of the undertakings that participated in the conduct at issue, it is apparent from recital 1209 of the contested decision that the combined market share of the incriminated carriers on the ‘worldwide market’ was 34% in 2005 and was ‘at least as high’ for freight services on EEA-third country routes, which included both outbound and inbound routes. Moreover, during the infringement period, the applicant itself achieved a significant turnover on the inbound routes, in excess of EUR 580 000 000 in 2005.
162 It must therefore be concluded that the Commission has established to the requisite standard that the effect at issue was substantial.
(iv) The immediacy of the effect at issue
163 The requirement of immediacy of the effects produced by the conduct at issue relates to the causal link between the conduct and the effect examined. The purpose of that requirement is to ensure that the Commission cannot, in order to justify its jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement, rely on all the possible effects, however remote, for which that conduct might have been the cause in the sense of a conditio sine qua non (see, to that effect, Opinion of Advocate General Kokott in KONE and Others, C‑557/12, EU:C:2014:45, points 33 and 34).
164 The direct causal link must not, however, be regarded as being the same as a single causal link, which would mean always finding as a matter of course that the chain of causality is broken where the action of a third party was a contributory cause of the effects at issue (see, to that effect, Opinion of Advocate General Kokott in KONE and Others, C‑557/12, EU:C:2014:45, points 36 and 37).
165 In the present case, the intervention of freight forwarders in respect of which it was foreseeable that, with complete independence, they would pass on to shippers the additional costs that they had had to pay is indeed capable of having contributed to the occurrence of the effect at issue. However, that intervention was not in itself such as to break the causal chain between the conduct at issue and that effect and thus deprive it of its immediacy.
166 On the contrary, where it is not wrongful, but objectively results from the cartel at issue, in accordance with the normal functioning of the market, such an intervention does not break the causal chain (see, to that effect, judgment of 14 December 2005, CD Cartondruck v Council and Commission, T‑320/00, not published, EU:T:2005:452, paragraphs 172 to 182), but continues it (see, to that effect, Opinion of Advocate General Kokott in KONE and Others, C‑557/12, EU:C:2014:45, point 37).
167 In the present case, the applicant has not established, or even alleged, that the foreseeable passing on of the additional costs to shippers located in the EEA is wrongful or extraneous to the normal functioning of the market.
168 It follows that the effect at issue has the required immediacy.
169 None of the arguments put forward by the applicant is capable of calling that conclusion into question.
170 It should thus be noted that the applicant is not justified in relying on paragraph 87 of the judgment of 27 February 2014, InnoLux v Commission (T‑91/11, EU:T:2014:92). It is important to point out that the facts of the case that gave rise to that judgment differ fundamentally from those of the present case. That judgment concerned the distinction between the turnover from the internal sale of cartelised components which were in finished products sold in the EEA and that derived from the sale to third parties outside the EEA of cartelised components, which were also in finished products sold in the EEA. The Court held that the first turnover could be included in the value of sales. In contrast, as regards the second turnover, the Court considered that the link between the internal market and the infringement was too low. There was no evidence, however, that the finished goods incorporating the cartelised components sold to third parties outside of the EEA were a priori intended for sale in the EEA. Conversely, as stated in paragraph 132 above, although freight forwarders buy inbound freight services, it is in order to consolidate them in a package of services the very purpose of which is to organise the integrated transport of goods to the territory of the EEA on behalf of shippers.
171 It follows from the foregoing that the effect at issue is foreseeable, substantial and immediate and that the first ground on which the Commission relied in order to conclude that the qualified effects test was satisfied is well founded. It must therefore be held that the Commission was entitled, without committing any error, to find that the test was satisfied as regards coordination in relation to inbound freight services taken in isolation, without there being any need to examine the merits of the second ground relied on in recital 1045 of the contested decision.
(2) The effects of the single and continuous infringement taken as a whole
172 It should be noted at the outset that there is nothing to prevent an assessment of whether the Commission has the necessary jurisdiction to apply, in each case, EU competition law in the light of the conduct of the undertaking or undertakings in question, viewed as a whole (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 50).
173 Contrary to what the applicant claims, that is the case not only as regards Article 102 TFEU, but also with regard to Article 101 TFEU. According to the case-law, Article 101 TFEU may be applied to practices and agreements that serve the same anticompetitive objective, provided that it is foreseeable that, taken together, they will have immediate and substantial effects in the internal market. Undertakings cannot be allowed to avoid the application of the EU competition rules by combining a number of types of conduct that pursue the same objective, each of which, taken on its own, is not capable of producing an immediate and substantial effect in that market, but which, taken together, are capable of producing such an effect (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 106).
174 The Commission may thus base its jurisdiction to apply Article 101 TFEU to a single and continuous infringement as found in the decision at issue on the foreseeable, immediate and substantial effects of that infringement in the internal market (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 105).
175 Those considerations apply, mutatis mutandis, to Article 53 of the EEA Agreement.
176 In recital 869 of the contested decision, the Commission characterised the conduct at issue as a single and continuous infringement, including in so far as it concerned inbound freight services. In so far as the applicant contests that characterisation in general and the finding of the existence of a single anticompetitive aim of distorting competition within the EEA, on which it is based, its arguments will be examined in the context of the fourth plea in law, which relates to that matter.
177 In recital 1046 of the contested decision, the Commission, as is apparent from its answers to the written and oral questions put by the Court, examined the effects of that infringement taken as a whole. It thus found, inter alia, that its investigation had revealed ‘a cartel [that] was implemented globally’, whose ‘arrangements concerning inbound routes formed an integral part of the single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement’. It added that the ‘uniform application of the surcharges on a world wide scale was a key element of the cartel [at issue]’. As the Commission stated in reply to the written questions put by the Court, the uniform application of the surcharges forms part of an overall strategy designed to neutralise the risk that the freight forwarders could circumvent the effects of that cartel by opting for indirect routes which would not be subject to coordinated surcharges in order to transport goods from the point of origin to the point of destination. The reason for this, as is apparent from recital 72 of the contested decision, is that ‘there is not the same time sensitivity associated with [freight] transport as there is with passenger transport’, so that freight ‘may be routed with a higher number of stopovers’ and that, as a result, indirect routes are substitutable for direct routes.
178 In those circumstances, contrary to what the applicant claims, the Commission is correct in noting that prohibiting it from applying the qualified effects test to the conduct at issue taken as a whole might lead to an artificial fragmentation of comprehensive anticompetitive conduct, capable of affecting the market structure within the EEA, into a collection of separate forms of conduct which might escape, in whole or in part, the European Union’s jurisdiction (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 57).
179 None of the other arguments put forward by the applicant is capable of calling that assessment into question. First, contrary to what the applicant claimed at the hearing, there is no reason to consider that only the existence of an overall strategy to foreclose the most important sales channels in the market, excluding a horizontal cartel such as that at issue in the present case, is capable of justifying the application of the qualified effects test in the light of the conduct of the undertaking or undertakings in question, viewed as a whole. Secondly, as regards a restriction of competition ‘by object’, it is sufficient to note that, for the reasons set out in paragraphs 124 to 126 above, the Commission was not required to carry out an extensive analysis of the effects of the conduct at issue, which the applicant claims was carried out in the decision giving rise to the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632).
180 It must therefore be held that the Commission was entitled, in recital 1046 of the contested decision, to examine the effects of the single and continuous infringement taken as a whole.
181 As regards agreements and practices which, first, had the object of restricting competition at least in the European Union, the EEA and Switzerland (recital 903 of that decision), secondly, brought together carriers with significant market shares (recital 1209 of that decision) and, thirdly, a significant part of which related to intra-EEA routes for a period of more than six years (recital 1146 of that decision), there can be little doubt that it was foreseeable that, taken as a whole, the single and continuous infringement would produce immediate and substantial effects in the internal market or within the EEA.
182 It follows that the Commission was also entitled to find, in recital 1046 of the contested decision, that the qualified effects test was satisfied as regards the single and continuous infringement taken as a whole.
183 Since the Commission has thus established to the requisite legal standard that it was foreseeable that the conduct at issue would produce a substantial and immediate effect in the EEA, the present complaint must be rejected, as, consequently, must the present plea in its entirety, without it being necessary to examine the second part thereof, alleging errors in the application of the implementation test.
2. The plea, raised of the Court’s own motion, alleging lack of jurisdiction on the part of the Commission in the light of the EC-Switzerland Air Transport Agreement to find and penalise an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes
184 As a preliminary point, it should be recalled that it is for the Courts of the European Union to examine of their own motion the plea, which is a matter of public policy, alleging a lack of jurisdiction on the part of the author of the contested measure (see, to that effect, judgment of 13 July 2000, Salzgitter v Commission, C‑210/98 P, EU:C:2000:397, paragraph 56).
185 However, according to settled case-law, the Courts of the European Union cannot, as a general rule, base their decisions on a plea raised of their own motion – even one involving a matter of public policy – without first having invited the parties to submit their observations in that regard (see judgment of 17 December 2009, Review M v EMEA, C‑197/09 RX‑II, EU:C:2009:804, paragraph 57 and the case-law cited).
186 In the present case, the Court takes the view that it has a duty to examine of its own motion whether the Commission exceeded its own jurisdiction on the basis of the EC-Switzerland Air Transport Agreement as regards non-EU EEA-Switzerland routes by finding, in Article 1(3) of the contested decision, that there had been an infringement of Article 53 of the EEA Agreement on non-EU EEA-third country routes, and invited the parties to submit their observations in that regard in the context of the measures of organisation of procedure.
187 The applicant submits that the reference to ‘third countries’ in Article 1(3) of the contested decision included the Swiss Confederation. The applicant argued that the latter is a third country within the meaning of the EEA Agreement. The applicant inferred from this that the Commission had, in that article, found an infringement of Article 53 of the EEA Agreement as regards non-EU EEA-Switzerland routes and had thus overstepped the bounds of its jurisdiction under Article 11(2) of the EC-Switzerland Air Transport Agreement and had breached the public international law principle that a treaty may not impose obligations on a third State.
188 The Commission replies that the reference in Article 1(3) of the contested decision to ‘routes between airports in countries that are Contracting Parties of the EEA Agreement but not Member States and airports in third countries’ cannot be interpreted as including non-EU EEA-Switzerland routes. In its view, the concept of ‘third country’ within the meaning of that article excludes the Swiss Confederation.
189 The Commission adds that, if it were to be held that it found the applicant liable for an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes in Article 1(3) of the contested decision, it would have exceeded the limits which Article 11(2) of the EC-Switzerland Air Transport Agreement imposes on its jurisdiction.
190 It is necessary to determine whether, as the applicant maintains, the Commission found an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes in Article 1(3) of the contested decision and, if so, whether it thus exceeded the limits of its jurisdiction under the EC-Switzerland Air Transport Agreement.
191 In that regard, it should be recalled that the principle of effective judicial protection is a general principle of EU law now enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). That principle, which corresponds, in EU law, to Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, requires that the operative part of a decision by which the Commission finds infringements of the competition rules must be particularly clear and precise and that the undertakings held liable and penalised must be in a position to understand and to contest the imputation of that liability and the imposition of those penalties, as set out in the wording of that operative part (see judgment of 16 December 2015, Martinair Holland v Commission, T‑67/11, EU:T:2015:984, paragraph 31 and the case-law cited).
192 It is in the operative part of its decisions that the Commission must indicate the nature and extent of the infringements which it penalises. As regards in particular the scope and nature of the infringements penalised, it is thus in principle the operative part, and not the statement of reasons, which is important. Only where there is a lack of clarity in the terms used in the operative part should reference be made, for the purposes of interpretation, to the statement of reasons contained in a decision (see judgment of 16 December 2015, Martinair Holland v Commission, T‑67/11, EU:T:2015:984, paragraph 32 and the case-law cited).
193 In Article 1(3) of the contested decision, the Commission found that the applicant had ‘infringed Article 53 of the EEA Agreement as regards routes between airports in countries that are Contracting Parties of the EEA Agreement but not Member States and airports in third countries’ from 19 May 2005 to 14 February 2006. The Commission neither expressly included non-EU EEA-Switzerland routes amongst those routes, nor expressly excluded them.
194 It is therefore necessary to ascertain whether the Swiss Confederation is amongst the ‘third countries’ referred to in Article 1(3) of the contested decision.
195 In that regard, it should be noted that Article 1(3) of the contested decision distinguishes between ‘countries that are Contracting Parties of the EEA Agreement but not Member States’ and third countries. It is true that, as the applicant observes, the Swiss Confederation is not party to the EEA Agreement and therefore numbers amongst the ‘third countries’ to that agreement.
196 It should, however, be recalled that, given the requirements of unity and consistency in the EU legal order, the same words used in the same act must be assumed to have the same meaning.
197 In Article 1(2) of the contested decision, the Commission found an infringement of Article 101 TFEU as regards ‘routes between airports within the European Union and airports outside the EEA’. That concept does not include airports within Switzerland, even though the Swiss Confederation is not party to the EEA Agreement and its airports should formally be regarded as being ‘outside the EEA’ or, in other words, in a third country to that agreement. Those airports are the subject of Article 1(4) of the contested decision, which finds an infringement of Article 8 of the EC-Switzerland Air Transport Agreement, as regards ‘routes between airports within the European Union and airports in Switzerland’.
198 In accordance with the principle recalled in paragraph 196 above, it must therefore be assumed that the phrase ‘airports in third countries’ employed in Article 1(3) of the contested decision has the same meaning as the phrase ‘airports outside the EEA’ employed in Article 1(2) and, therefore, excludes airports in Switzerland.
199 In the absence of any indication in the operative part of the contested decision that the Commission intended to give a different meaning to the concept of ‘third countries’ referred to in Article 1(3) of the contested decision, it must be held that the concept of ‘third countries’ referred to in Article 1(3) thereof excludes the Swiss Confederation.
200 It therefore cannot be held that the Commission found the applicant liable for an infringement of Article 53 of the EEA Agreement as regards non-EU EEA-Switzerland routes in Article 1(3) of the contested decision.
201 Since the operative part of the contested decision leaves no room for doubt, it is therefore solely for the sake of completeness that the Court adds that the grounds of that decision do not contradict that finding.
202 In recital 1146 of the contested decision, the Commission stated that the ‘anti-competitive arrangements’ which it had described infringed Article 101 TFEU from 1 May 2004 to 14 February 2006 ‘as regards air transport between airports within the [European Union] and airports outside the EEA’. In the relevant footnote (No 1514), the Commission stated the following: ‘For the purpose of this Decision, “airports outside the EEA” include airports in countries other than Switzerland and in Contracting Parties to the EEA Agreement.’
203 It is true that, where it described the scope of the infringement of Article 53 of the EEA Agreement in recital 1146 of the contested decision, the Commission did not refer to the concept of ‘airports outside the EEA’ but rather to ‘airports in third countries’. It cannot, however, be inferred therefrom that the Commission intended to give a different meaning to the concept of ‘airports outside the EEA’ for the purposes of applying Article 101 TFEU and to that of ‘airports in third countries’ for the purposes of applying Article 53 of the EEA Agreement. On the contrary, the Commission used those two phrases interchangeably in the contested decision. Thus, in recital 824 of the contested decision, the Commission stated that it ‘[would] not apply Article 101 TFEU to anti-competitive agreements and practices concerning air transport between [European Union] airports and airports in third countries that took place before 1 May 2004’. Similarly, in recital 1222 of that decision, as regards the end of SAS Consortium’s participation in the single and continuous infringement, the Commission referred to its jurisdiction on the basis of those provisions ‘on routes between the [European Union] and third countries and routes between Iceland, Norway and Liechtenstein and countries outside the EEA’.
204 The grounds of the contested decision therefore confirm that the concepts of ‘airports in third countries’ and ‘airports outside the EEA’ have the same meaning. In accordance with the definition set out in footnote No 1514, it must therefore be held that both concepts exclude airports in Switzerland.
205 Contrary to what the applicant claims, recitals 1194 and 1241 of the contested decision do not militate in favour of another solution. Admittedly, the Commission referred, in recital 1194 of that decision, to ‘routes between the EEA and third countries, except routes between the [European Union] and Switzerland’. Similarly, in recital 1241 of that decision, in the context of the ‘determination of the value of sales on third country routes’, the Commission reduced by 50% the basic amount for ‘EEA-third country routes, except routes between the [European Union] and Switzerland where the Commission is acting under the [EC-Switzerland Air Transport Agreement]’. It could be considered, as the applicant observes in essence, that if the Commission took care to insert in those recitals the words ‘with the exception of routes between the [European] Union and Switzerland’, it is because it took the view that the Swiss Confederation fell within the scope of the concept of ‘third country’ in so far as the EEA-third country routes were concerned.
206 The Commission acknowledged, furthermore, that it was possible that it had ‘inadvertently’ included in the value of sales the turnover which some of the incriminated carriers generated on non-EU EEA-Switzerland routes during the period concerned. According to the Commission, the reason for this is that, in its request for information of 26 January 2009, it did not inform the carriers concerned that turnover on non-EU EEA-Switzerland routes should be excluded from the value of sales on non-EU EEA-third country routes.
207 It must nevertheless be found, as the Commission did, that those elements relate exclusively to the revenues to be taken into account for the purposes of calculating the basic amount of the fine, not of determining the geographical boundaries of the single and continuous infringement at issue here.
208 The present plea must therefore be rejected.
3. The first plea in law, alleging misuse of powers and a manifest error of assessment in taking into account evidence relating to routes and periods falling outside the competence of the Commission
209 The applicant claims, in essence, that the Commission overstepped the bounds of its jurisdiction and made a manifest error of assessment and error of law by extending ‘through the back door’ the finding of an infringement on the EU-third country routes, non-EU EEA-third country routes and EU-Switzerland routes to behaviour that predates the relevant dates on which the Commission acquired the necessary powers to find an infringement of the relevant competition rules on those routes. According to the applicant, the Commission largely based the finding of infringements of Article 101 TFEU and Article 53 of the EEA Agreement on intra-EEA routes on evidence relating to freight services on EU-third country routes, non-EU EEA-third country routes and EU-Switzerland routes, before, respectively, 1 May 2004, before 19 May 2005 and before 1 June 2002.
210 Most of the case-law on which the Commission relies concerns the question of the extent to which the Commission may rely on facts which predate the starting point of an infringement, but they do not, by contrast with the present case, concern situations in which the EU legislature expressly restricted the Commission’s powers to apply Article 101 TFEU.
211 First of all, the Commission referred to meetings of trade organisations in third countries, including the CSC of the BAR in Hong Kong, and on facts which occurred outside the EU or the EEA and related to surcharges on EEA-third country routes.
212 Secondly, the Commission relied on contacts which took place in the EU but which cannot be presumed to have related to intra-EEA routes. That is the case for contacts which involved non-EU carriers or involved EU carriers and routes from third countries and for contacts for which it is unclear whether they related to intra-EU or EEA routes. That evidence was decisive, but the Commission failed to verify that there was evidence relating to intra-EEA routes sufficient to support its findings of infringement of Article 101 TFEU and of Article 53 of the EEA Agreement on intra-EU and intra-EEA routes prior to 1 May 2004 and 19 May 2005, respectively.
213 The Commission disputes the applicant’s arguments.
214 It should be noted that, as is apparent from paragraphs 91 and 92 above, the Commission became competent to find and penalise an infringement of Article 101 TFEU on EU-third country routes and of Article 53 of the EEA Agreement on EEA-third country routes, on 1 May 2004 and 19 May 2005, respectively.
215 As regards the EC-Switzerland Air Transport Agreement, Article 11(1) provides, in essence, that it is for the Commission to apply Article 8 of that agreement. As the Commission observed in recital 830 of the contested decision, it became competent to do so on 1 June 2002.
216 In the present case, it is common ground between the parties that, in the operative part of the contested decision, the Commission did not find any infringement of Article 101 TFEU on EU-third country routes before 1 May 2004, or any infringement of Article 53 of the EEA Agreement on non-EU EEA-third country routes before 19 May 2005. Nor did it find, in the operative part, any infringement of Article 8 of the EC-Switzerland Air Transport Agreement on EU-Switzerland routes before 1 June 2002.
217 It follows that the operative part of the contested decision does not support the applicant’s argument that the Commission extended the single and continuous infringement to EU-third country routes before 1 May 2004, to non-EU EEA-third country routes before 19 May 2005 and to EU-Switzerland routes before 1 June 2002.
218 The applicant nevertheless considers that the Commission rendered the contested decision unlawful by referring to contacts relating to those routes which took place before those dates in order to find an infringement of the relevant provisions on routes falling within its competence. The applicant cites 22 recitals which it claims identify contacts that were ‘crucial for the finding of a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement’ (recitals 147, 148, 151, 171, 198, 208, 242, 244, 249, 256, 297, 299, 391, 396, 503, 543, 585, 595, 649, 654, 665 and 667).
219 As a preliminary point, it should be noted that the applicant asserts that it refers to those contacts only as an ‘example’. The applicant has not identified any other of the contacts at issue which it considers to relate to freight services on EEA-third country routes before, respectively, 1 May 2004 and 19 May 2005 and which therefore, in its view, should not have been taken into account for the purposes of establishing the single and continuous infringement.
220 Nor has the applicant identified any contact relating to EU-Switzerland routes prior to 1 June 2002 on which the Commission, in its view, unlawfully relied.
221 In those circumstances, lest it should search for and identify for itself among the documents before the Court the other contacts which the applicant sought to rely on, or even reconstruct the present plea by giving it a scope which might not have been intended by the applicant, and thus infringe the principle of delimitation of the subject matter of an action by the parties and the Commission’s rights of defence (see, to that effect, judgment of 2 April 2019, Fleig v EEAS, T‑492/17, EU:T:2019:211, paragraph 44 (not published)), the Court must confine its examination to the contacts described in the recitals identified in paragraph 218 above.
222 That being clarified, it is thus appropriate to examine whether the Commission was justified in relying on the contacts described in those recitals.
223 In that regard, in the first place, it should be noted that the various contacts to which the applicant refers fall into two categories. The first category comprises contacts that took place in third countries (recitals 147, 148, 151, 208, 242, 244, 256, 297, 299, 391, 396, 503, 543, 585, 595, 649, 654, 665 and 667), while the second comprises contacts that took place in the EEA or between employees, one or more of whom were located in the EEA, but which cannot be presumed to have concerned, in whole or in part, intra-EEA routes (recitals 171, 198 and 249).
224 As regards the second of those categories, it should be noted that at least one of the three contacts to which the applicant refers did not concern exclusively EEA-third country routes. Thus, in recital 198 of the contested decision, the Commission refers to the exchange of internal Japan Airlines emails of 6 December 2001. The first of those emails reports a contact with Lufthansa and states that Lufthansa intends to terminate the FSC ‘worldwide’ from 20 December 2001.
225 The second of those emails, on which the applicant’s argument focuses, is worded as follows:
‘Just received info from AF that they will cancel the FSC as from 24 December 2001. They do not know yet if they will increase their rate for the same amount to Japan.’
226 Contrary to what the applicant claims, it is apparent from that email that the contact reported did not relate exclusively to routes with Japan. Indeed, in response to a message about Lufthansa’s intention to terminate the FSC ‘worldwide’ from 20 December 2001 (see paragraph 224 above), that email refers to AF’s intention to do so four days later. Only later does the sender of that email mention Japan to indicate that it is not yet certain that AF will, as a consequence, increase its rates on routes to Japan.
227 As regards the contacts in the first category referred to in paragraph 223 above, it is common ground between the parties that they took place in third countries or, at the very least, that they involved local employees of the carriers at issue in those countries. It should be noted, however, that there was nothing to prevent the incriminated carriers from coordinating with each other or exchanging information in such countries concerning intra-EEA freight services. By way of illustration, in recital 296 of the contested decision, mention is made of an internal email from the Qantas office in Singapore of 18 February 2003 in which reference is made to the introduction of a certain amount of FSC by British Airways ‘in Europe’. Similarly, in recital 206 of the contested decision, reference is made to a letter of 19 November 2001 in which the Chairman of the BAR CSC in Hong Kong invited the members of the association to ‘advise [him] if [their] head offices [had] any plan to reduce or withdraw the [FSC] in overseas markets’.
228 That said, it should be noted that the present part of the plea would be bound to fail even if the contacts at issue other than the one referred to in recital 198 of the contested decision all concerned exclusively routes that, in the relevant periods, fell outside the Commission’s jurisdiction.
229 In that regard, it must be borne in mind that the Commission may rely on contacts predating the infringement period in order to construct an overall impression of the situation and thus corroborate the interpretation of certain items of evidence (judgment of 8 July 2008, Lafarge v Commission, T‑54/03, not published, EU:T:2008:255, paragraphs 427 and 428). That would apply even if the Commission were not competent to find and penalise an infringement of the competition rules predating that period (see, to that effect, judgments of 30 May 2006, Bank Austria Creditanstalt v Commission, T‑198/03, EU:T:2006:136, paragraph 89, and of 22 March 2012, Slovak Telekom v Commission, T‑458/09 and T‑171/10, EU:T:2012:145, paragraphs 45 to 52).
230 In the part of the contested decision entitled ‘Basic principles and structure of the cartel’, in recital 107, the Commission stated that its investigation had revealed a worldwide cartel based on a network of bilateral and multilateral contacts, which took place ‘at various levels in the undertakings concerned … and in some instances related to various geographical areas’.
231 In recitals 109, 110, 876, 889 and 1046 of, and footnote 1323 to, the contested decision, the Commission set out the mode of operation of the cartel, which involves a multi-level structure. According to the Commission, the surcharges were measures of general application that were not route-specific but were intended to be applied on all routes. Decisions concerning surcharges were generally taken at the head office level of each carrier. The head offices of the carriers were thus ‘in contact with each other’ when a change to the surcharge level was imminent. At local level, carriers coordinated, partly in order better to implement the instructions received from their respective head offices and adapt them to the local market conditions and local regulations, partly to coordinate and implement local initiatives. In recital 111 of the contested decision, the Commission stated that the local associations of carrier representatives were used for that purpose, in particular in Hong Kong and Switzerland.
232 The contacts to which the applicant refers in relation to the present plea fell precisely within this context. First, those contacts concerned, in whole or in part, the introduction and implementation of surcharges in Hong Kong (recitals 147, 148, 208, 242, 503, 585, 665 and 667), Japan (recitals 244, 256 and 391), India (recitals 151, 299 and 543), Thailand (recitals 297, 396 and 654), Kenya (recital 649), Canada (recital 249), and, more generally, South East Asia (recital 595), and on routes between third countries and France (recital 171). Secondly, several of those contacts either involved employees in the head office of the incriminated carriers or referred to instructions from or communications with such employees (recitals 171, 391, 396, 503, 543, 585, 595 and 654). Thirdly, the vast majority of those contacts either reflected, at local level, announcements made or decisions taken previously at central level (recitals 147, 148, 171, 208, 244 and 249), or were at least contemporaneous with discussions between the head offices or decisions taken at head office level concerning surcharges (paragraphs 297, 299, 585, 595, 649, 654 and 667). Fourthly, many of those contacts took place in the context of, or ancillary to, local associations of carrier representatives (recitals 147, 151, 208, 242, 299, 503, 665 and 667).
233 Moreover, the applicant has not claimed that those contacts fail to support the interpretation of other evidence relied on for the purpose of establishing the single and continuous infringement, which is not alleged to fall outside the Commission’s jurisdiction. On the contrary, the applicant expressly claims that those contacts are determinative and that the Commission did not verify whether, in their absence, there was sufficient evidence relating to intra-EEA routes to support the finding of an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on intra-EEA routes before 1 May 2004 and 19 May 2005, respectively. In that regard, it should be noted that the Commission describes, in the contested decision, as regards the FSC, the contacts supporting the finding of an infringement between the end of 1999 and spring 2005 in paragraphs 4.3.4 to 4.3.18 (recitals 133 to 468). As regards the contacts relating to the SSC, described in recitals 581 to 674, the vast majority of them took place before 19 May 2005, and a large majority of them before 1 May 2004. Thus, the contacts relied on by the applicant represent a fraction of all the contacts that the Commission relied in order to establish the existence of an infringement of Article 101 TFEU and Article 53 of the EEA Agreement, respectively, before 1 May 2004 and 19 May 2005, for the routes in regard to which it had jurisdiction and in regard to FSC and SSC aspects.
234 It follows that the Commission did not overstep the bounds of its jurisdiction by relying on the contacts referred to in recitals 147, 148, 151, 171, 198, 208, 242, 244, 249, 256, 297, 299, 391, 396, 503, 543, 585, 595, 649, 654, 665 and 667 of the contested decision in order to create an overall picture of the cartel at issue and thus support its interpretation of the other evidence which it relied upon.
235 The present plea must therefore be rejected.
4. The second plea in law, alleging breach of essential procedural requirements, infringement of the rights of the defence and manifest error of assessment
236 The present plea, in which the applicant claims that the Commission made a manifest error of assessment, breached essential procedural requirements and infringed its rights of defence by failing to issue a new statement of objections and organise a new administrative hearing before adopting the contested decision, particularly in the light of pending actions for damages consists, in essence, of two parts. The first alleges an error on the part of the Commission in so far as it concluded that the annulment of the Decision of 9 November 2010 did not affect the validity of the Statement of Objections and the second alleges that the contested decision is vitiated by the fact that the conduct complained of therein is new or substantially different to that described in the Statement of Objections.
(a) The first part, alleging an error on the part of the Commission in so far as it concluded that the annulment of the Decision of 9 November 2010 did not affect the validity of the Statement of Objections
237 In support of the present part of the plea, the applicant claims that the question of whether or not the annulment of the Decision of 9 November 2010 was purely procedural is not relevant for the purposes of determining the stage at which the proceedings should have been resumed following the judgment of 16 December 2015, Cargolux Airlines v Commission (T‑39/11, not published, EU:T:2015:991). It maintains that, on the contrary, it is necessary to consider, on a case-by-case basis, whether the irregularity leading to the annulment had any effect on the preparatory work for the annulled act.
238 The annulment of the Decision of 9 November 2010 goes to the very heart of the dispute and necessarily and substantially affected the preparatory work for the decision, and specifically the Statement of Objections, to such an extent that the Statement of Objections is called into question and the applicant was unable to defend itself. The contradictions that led to the annulment of the decision are a direct result of the Commission’s attempts to avoid replicating the jurisdictional defects in the Statement of Objections. The question whether the Statement of Objections is vitiated by the same defects as the Decision of 9 November 2010 is, on the other hand, irrelevant. The letter of 20 May 2016, for its part, was too vague to enable the applicant to exercise its procedural rights.
239 The Commission disputes the applicant’s arguments.
240 Pursuant to Article 266 TFEU, the institution whose act has been declared void is required to take the necessary measures to comply with the judgment annulling its act. That obligation involves only taking the necessary measures to comply with the judgment annulling its measure (judgment of 29 November 2007, Italy v Commission, C‑417/06 P, not published, EU:C:2007:733, paragraph 52).
241 According to settled case-law, in order to comply with a judgment annulling a measure and to implement it fully, the institution concerned is required to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part (judgments of 26 April 1988, Asteris and Others v Commission, 97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraph 27, and of 6 March 2003, Interporc v Commission, C‑41/00 P, EU:C:2003:125, paragraph 29).
242 It should also be noted that the annulment of an EU act does not necessarily affect preparatory measures, since the procedure for replacing the annulled measure may, in principle, be resumed at the very point at which the illegality occurred. The annulment of the act does not, in principle, affect the validity of the measures preparatory to that measure, which were taken before the stage at which the defect was observed. If it is found that the annulment does not affect the validity of the prior procedural measures, the Commission is not, as a result of that annulment alone, required to present the undertakings concerned with a new statement of objections (judgment of 6 July 2017, Toshiba v Commission, C‑180/16 P, EU:C:2017:520, paragraph 24).
243 In the present case, in the judgment of 16 December 2015, Cargolux Airlines v Commission (T‑39/11, not published, EU:T:2015:991), the Court annulled the Decision of 9 November 2010 on account of contradictions between the grounds and the operative part thereof, which meant it had not been possible for the applicant and the Court to understand the line of reasoning that had led the Commission to find that the applicant was liable for an infringement (see paragraphs 16, 19 and 20 above).
244 It is common ground that the defective reasoning identified by the Court in the judgment of 16 December 2015, Cargolux Airlines v Commission (T‑39/11, not published, EU:T:2015:991), occurred at the final stage of the adoption of the Decision of 9 November 2010 and not earlier.
245 It is also common ground that the error relating to the Commission’s jurisdiction which allegedly vitiated the Statement of Objections was not the subject, in the judgment of 16 December 2015, Cargolux Airlines v Commission (T‑39/11, not published, EU:T:2015:991), of findings on the part of the Court, which ruled exclusively on a defect affecting the internal consistency of the Decision of 9 November 2010.
246 The Commission was therefore right to find, in recital 1057 of the contested decision, that the annulment of the Decision of 9 November 2010 ‘did not affect the preparatory acts preceding [that decision], with the result that the Commission is entitled to resume the procedure at the very point at which the illegality occurred in other words the adoption of [that decision]’.
247 That conclusion is not called into question by the applicant’s claim that the defective reasoning identified in the judgment of 16 December 2015, Cargolux Airlines v Commission (T‑39/11, not published, EU:T:2015:991), is the ‘direct result of the Commission’s attempts to avoid replicating the jurisdictional defects in the Statement of Objections’. By that claim, the applicant does not maintain that it is the alleged errors affecting the Statement of Objections that gave rise to the defective reasoning vitiating the Decision of 9 November 2010, but rather the Commission’s ‘attempts’ to remedy that defect in that decision. It thus merely confirms that the defect found by the Court in that judgment occurred only at the final stage of the adoption of that decision.
248 The present part of the plea must therefore be rejected.
(b) The second part, alleging a defect vitiating the contested decision in so far as the conduct complained of therein is new or substantially different to that described in the Statement of Objections
249 According to the applicant, the Commission is wrong to conclude that the contested decision contains no new objection and does not alter the substance of the objections set out in the Statement of Objections.
250 First, it is apparent from Article 1(1) of the contested decision that that decision alters the intrinsic nature of the single and continuous infringement and, more specifically, increases its scope, by attributing liability to all of the incriminated carriers for the single and continuous infringement in so far as it relates to the intra-EEA routes. Given that the factual and legal findings in the contested decision must be regarded as established by any national court in the context of an action in damages, the extension of the scope of the infringement will have consequences for the applicant.
251 Secondly, the erroneous approach to the extent of its jurisdiction taken by the Commission in the Statement of Objections also fully vitiated the assessment of the case against the applicant. The contested decision is based on the evidence that was relied on in the Statement of Objections and on documents relating to third-country routes prior to the date on which the Commission acquired the necessary competence in that regard.
252 Thirdly, the reasoning set out in recitals 887 to 890 of the contested decision, concerning the worldwide nature of the single and continuous infringement, and the addition of the words ‘on a global basis’, in the introductory paragraph of Article 1 of the contested decision are new or altered the content of the objections in the Statement of Objections.
253 The Commission disputes the applicant’s arguments.
254 In that regard, it should be recalled that the Statement of Objections constitutes the procedural safeguard applying the fundamental principle of EU law which requires observance of the rights of the defence in all proceedings (see judgment of 3 September 2009, Papierfabrik August Koehler and Others v Commission, C‑322/07 P, C‑327/07 P and C‑338/07 P, EU:C:2009:500, paragraph 35).
255 That principle requires, in particular, that the Statement of Objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contain the essential elements used against it, such as the facts, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it (judgment of 3 September 2009, Papierfabrik August Koehler and Others v Commission, C‑322/07 P, C‑327/07 P and C‑338/07 P, EU:C:2009:500, paragraph 36).
256 Article 27(1) of Regulation No 1/2003 and Article 11(2) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 TFEU] and [102 TFEU] (OJ 2004 L 123, p. 18), which apply that principle, require the Commission to adopt in its final decision only objections in respect of which the undertakings and associations of undertakings concerned have been afforded the opportunity of making known their views.
257 At the same time, account must be taken of the provisional nature of the statement of objections, with the result that the existence of differences between this document and the final decision is not only possible but lawful, in so far as the final decision reflects all the evidence submitted and discussed during the administrative procedure, including after the sending of the statement of objections (see, to that effect, judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 67).
258 It is only if the final decision alleges that the undertakings concerned have committed infringements other than those referred to in the statement of objections or takes into consideration different facts that there will be an infringement of the rights of the defence (see judgment of 14 March 2013, Fresh Del Monte Produce v Commission, T‑587/08, EU:T:2013:129, paragraph 706 and the case-law cited). According to the case-law, that is not the case where the alleged differences between the statement of objections and the final decision do not concern any conduct other than that in respect of which the undertakings concerned have already submitted observations and are therefore unrelated to any new objection (judgment of 29 March 2012, Telefónica and Telefónica de España v Commission, T‑336/07, EU:T:2012:172, paragraphs 84 and 85).
259 In the present case, the Commission concluded, in Article 1 of the contested decision, that the incriminated carriers, by coordinating their pricing behaviour in the provision of freight services throughout the world as regards the STC, the SSC and the refusal to pay commission, participated in the single and continuous infringement on all the categories of routes referred to in Article 1(1) to (4). Those are intra-EEA routes (paragraph 1), EU-third country routes (paragraph 2), non-EU EEA-third country routes (paragraph 3) and EU-Switzerland routes (paragraph 4).
260 As stated in paragraph 46 above, the period during which the single and continuous infringement was found to have been committed varies according to the routes concerned:
– from 7 December 1999 until 14 February 2006, in so far as concerns intra-EEA routes;
– from 1 May 2004 until 14 February 2006, in so far as concerns EU-third country routes;
– from 19 May 2005 until 14 February 2006, in so far as concerns non-EU EEA-third country routes;
– from 1 June 2002 to 14 February 2006, in so far as concerns EU-Switzerland routes.
261 For its part, the Statement of Objections stated that ‘all the anti-competitive activities involving each of the participants fit within an overall aim’ (paragraph 1430) and that ‘it would be artificial to split such continuous inter-related conduct, characterised by a single purpose, by treating it as consisting of several separate infringements when it involved a single complex and continuous infringement for the services concerned’ (paragraph 1432).
262 In the Statement of Objections, the Commission found that there had been a single and continuous infringement over the period from 7 December 1999 to 14 February 2006 (paragraph 1564).
263 As regards, specifically, EU-third country routes, non-EU EEA-third country routes and EU-Switzerland routes, it is apparent from paragraphs 1388, 1392, 1395, 1577 and 1578 of the Statement of Objections that the Commission considered, in essence, that it had jurisdiction to find a single and continuous infringement regarding the first two categories of routes for the whole of the infringement period and, as regards the last category of routes, from 1 June 2002 onwards. At the same time, it considered that it had jurisdiction to impose a fine on that basis only from 1 May 2004 for EU-third country routes, 19 May 2005 for non-EU EEA-third country routes and 1 June 2002 EU-Switzerland routes.
264 As regards the intra-EEA routes, it is apparent from paragraphs 1389, 1393, 1568 and 1569 of the Statement of Objections that the Commission considered that it had jurisdiction both to find and to penalise the single and continuous infringement committed as regards those routes for the entire infringement period.
265 It follows from the foregoing that, in adopting the contested decision, the Commission did not increase the scope of the infringement described in the Statement of Objections.
266 Contrary to the submissions of the applicant, all of the incriminated carriers were found, at the stage of the Statement of Objections, to have participated in the single and continuous infringement of the four categories of routes referred to in Article 1 of the contested decision.
267 Moreover, although the infringement period set out in the Statement of Objections in respect of EU-third country routes and non-EU EEA-third country routes differs from that found in the contested decision, the temporal scope of the infringement ultimately established in the contested decision is not extended, but, on the contrary, that infringement is limited in relation to the categories of routes concerned.
268 None of the other arguments put forward by the applicant is capable of calling into question the foregoing conclusions.
269 First, as is apparent from the examination of the first plea above, the fact that the contested decision is based on evidence relied on in the Statement of Objections concerning routes in relation to which the Commission did not have jurisdiction has no bearing on the legality of that decision since the Commission was justified in using that evidence to create an overall picture of the cartel at issue and thus support other evidence relating to conduct not outside its jurisdiction (see paragraphs 228 to 234 above).
270 Secondly, as regards the alleged novelty of the reasoning set out in recitals 887 to 890 of the contested decision regarding the worldwide nature of the single and continuous infringement and the addition of the words ‘on a global basis’ in the introductory paragraph of Article 1 of the contested decision, it must be observed at the outset that, contrary to the claims of the applicant, the Commission did not find, in the operative part of the contested decision, that there was an infringement of worldwide scope. The reference to the incriminated carriers’ coordination of their ‘pricing behaviour in the provision of [freight] services on a global basis’ in the introductory paragraph of Article 1 of that decision is merely a finding of facts which the Commission classified in paragraphs 1 to 4 of that article as an infringement of the competition rules applicable on the routes which it considered, during the relevant periods, to fall within its jurisdiction (see paragraph 259 above).
271 That distinction is to be found in the grounds of the contested decision. Those grounds thus also make reference to (i) an infringement of the applicable competition rules, the geographic scope of which is limited to specific types of routes (recitals 1146 and 1187) and (ii) a ‘worldwide cartel’ (recitals 74, 112, 832 and 1300), a cartel of ‘worldwide nature’ (recital 887) or a cartel ‘implemented globally’ (recital 1046).
272 Recital 1210 of the contested decision does, admittedly, derogate from the rule, in that it refers to ‘the geographic scope of the infringement [which] was worldwide’. However, it must be stated that the context of that isolated reference to a worldwide infringement tends to show that it is a mere clerical error and should read ‘the geographic scope of the cartel [at issue] was worldwide’. That reference is followed by the following sentences:
‘For the purposes of establishing the gravity of the infringement, this means that the cartel covered the whole of the EEA and [the Swiss Confederation]. That includes airfreight services … on routes in both directions between airports within the EEA, on routes between airports in countries within the EU and airports outside the EEA, on routes between airports in the EU and airports in Switzerland and on routes between airports in the EEA Contracting Parties not being Member States and airports in third countries.’
273 In so far as the applicant claims that the finding of the global dimension of the cartel at issue is new, it must be observed that, as the applicant itself acknowledges, the Statement of Objections referred to the existence of a worldwide cartel.
274 Thus paragraph 3 of the Statement of Objections read as follows:
‘the addressees of the present Statement of Objections participated in a single and continuous infringement … by which they coordinated their pricing behaviour in the provision of [freight] services on a global basis, with respect to various surcharges … and the payment of commission payable on surcharges, in particular … the [FSC]; the [SSC] … and the [refusal to pay commission]’.
275 That assertion is repeated, in essence, in paragraph 1409 of the Statement of Objections.
276 Similarly, paragraph 125 of the Statement of Objections stated that ‘the co-coordinated application of the [FSC] had the objective of ensuring that air freight carriers throughout the world imposed a flat rate surcharge per kilo for all relevant shipments. … This coordinated approach was extended to the [SSC and other] surcharges. Furthermore, the [carriers] coordinated their refusal to pay a commission on the surcharges …’
277 Moreover, although the applicant correctly states, in the reply, that there was no reference to the worldwide nature of the cartel at issue in paragraphs 1430 to 1438 of the Statement of Objections, it must be observed that those arguments concerned the qualification of the single and continuous infringement and its anticompetitive object, and not that of the cartel at issue. Since the Commission was able to find an infringement only in respect of the routes within its jurisdiction, it was logical for it to describe the geographic scope of that infringement more narrowly than that of the cartel at issue. That is precisely what the Commission did in paragraph 1430 of the Statement of Objections by referring to the ‘EEA-wide market for air freight, including routes between EEA airports and third countries’.
278 Lastly, the fact, relied on by the applicant, that recitals 887 to 890 of the contested decision, like the addition of the words ‘on a global basis’ to the introductory paragraph of Article 1 of that decision, are ‘new’ as compared with the Decision of 9 November 2010 is irrelevant. All that matters, in the context of the present part of the plea, is whether that evidence was brought to the attention of the applicant during the administrative procedure.
279 It must be observed that the applicant is mistaken in so far as it claims that the evidence relied on in recitals 887 to 890 of the contested decision in relation to the statement of objections is new.
280 On the one hand, it must be observed that, as is apparent from recitals 112, 886 and 887 of the contested decision, the statement in question is made by the Commission in response to the arguments of certain addressees of the Statement of Objections intending to call into question the relevance of contacts in third countries and contacts concerning routes which the carriers had never operated or which they could not legally have operated.
281 Thus, the statement in question falls within the possibility afforded to the Commission, in the light of the administrative procedure, of revising or supplementing the arguments of fact or of law on which it has relied in support of its objections (see, to that effect, judgment of 29 March 2012, Telefónica and Telefónica de España v Commission, T‑336/07, EU:T:2012:172, paragraph 82).
282 On the other hand, the Commission’s allegedly new arguments in recitals 887 to 890 of the contested decision were in fact based on factors already set out in the Statement of Objections. In addition to the question of the worldwide nature of the cartel at issue (recital 887 of the contested decision), those paragraphs refer, in particular, to the evidence relied on to establish that the infringement at issue was a single infringement (recital 888 of that decision) and to the evidence relating to the general applicability of the surcharges (recital 889 of that decision), which were mentioned in the statement of objections (paragraphs 825, 1424, 1428, 1429 and 1431).
283 The finding in recital 890 of the contested decision that arrangements with other carriers were such as to enable each of those carriers to ‘overcome any legal or technical barriers to the provision of [freight] services on routes on which it did not operate or which it could not legally have operated’ is, contrary to the applicant’s submission, apparent from the Statement of Objections. Thus, in paragraph 7 of the Statement of Objections, the Commission stated the following:
‘no airline is able to reach all major cargo destinations in the world with its own network with sufficient frequencies, so agreements among carriers to increase their network coverage or improve their schedule are common. Such agreements can take various forms, such as a simple capacity purchase or some degree of costs and revenue sharing. Within the industry, they are often referred to as “joint ventures” even when they are in reality only capacity purchase agreements’.
284 In paragraph 102 of the Statement of Objections, the Commission added the following:
‘most [freight] carrier providers operate on a worldwide basis. Air transport is generally carried out over long distance and goods are often transported from continent to continent. The market for [freight] is worldwide. Most [freight] service providers operate a route network on which they offer regular services in both directions. Typically, they offer services to or from a number of airports in their home region and a wide range of airports in other parts of the world. Through arrangements with other carriers they may also offer airfreight services to or from other airports which their own aircraft do not serve, or freight for which they do not have available capacity’.
285 Accordingly, the present part and, therefore, the second plea in its entirety must be rejected.
5. The third plea in law, alleging an error of law and a manifest error of assessment in the application of Article 101 TFEU
286 The applicant claims, in essence, that the Commission erred in law and made a manifest error of assessment in categorising as restrictions of competition ‘by object’ the coordination relating to the FSC, the SSC and the refusal to pay commission, without having first assessed the relevant economic and legal context.
287 It submits that the Commission relied exclusively on two earlier judgments, namely those of 6 July 2000, Volkswagen v Commission (T‑62/98, EU:T:2000:180, paragraph 178), and of 25 October 2005, Groupe Danone v Commission (T‑38/02, EU:T:2005:367, paragraph 150). In so doing, the Commission based its analysis on judgments which, unlike the present case, concerned conduct which, by its very nature, seriously infringed the competition rules. The Commission thereby also ignored the significance of recent case-law and, in particular, the judgment of 11 September 2014, CB v Commission (C‑67/13 P, EU:C:2014:2204). It is clear from that judgment that the Commission may not confine itself to a merely abstract assessment in order to reach a finding of a restriction of competition ‘by object’. The conduct in question may only be classified as such once an individual, detailed examination of the facts of the case, including the relevant economic and legal context, has been carried out. That is so even if the conduct involves price fixing and is particularly serious.
288 In the present case, the Commission failed to examine the relevant economic and legal context. The discussion of that context in the contested decision is perfunctory. In particular, the Commission did not consider in detail the facts of supply and demand on the relevant market.
289 In the applicant’s view, a proper assessment of the relevant economic and legal context would have demonstrated that the conduct at issue did not reveal a sufficient degree of harm to competition to be classified as a restriction of competition ‘by object’. Given the structure of the freight market, the conduct at issue was extremely unlikely to restrict competition.
290 First, the conduct at issue was unlikely to raise prices above the competitive level. The conduct at issue concerned only part of the price. It did not fix selling prices nor did it reduce or eliminate price competition and could in any event subsequently be competed away in the form of lower headline rates. Customers make their purchasing decisions on the basis of that price, whereas carriers’ profits do not increase if surcharges increase. As regards case-law in which surcharge coordination was described as a restriction ‘by object’, they are distinguishable on the facts. By contrast with the present case, those cases concerned either cartels whose members had higher market shares or an infringement that resulted in ‘institutionalised regulation of prices and competition’. Similarities as regards the pursuit of a single anticompetitive aim and coordination across a series of factors are insufficient.
291 Secondly, the conduct at issue was unlikely to restrict competition indirectly. Given the structure and complexity of the freight market, poor price transparency, the differences between the incriminated carriers and their small market shares, the conditions necessary for establishing tacit collusion were not fulfilled.
292 The Commission disputes the applicant’s arguments.
293 It should be borne in mind that, in order to be caught by the prohibition laid down in Article 101(1) TFEU, an agreement, a decision by an association of undertakings or a concerted practice must have ‘as [its] object or effect’ the prevention, restriction or distortion of competition in the internal market.
294 According to the settled case-law of the Court of Justice since the judgment of 30 June 1966, LTM (56/65, EU:C:1966:38), the alternative nature of that requirement, as shown by the conjunction ‘or’, leads, first of all, to the need to consider the precise object of the agreement (judgments of 26 November 2015, Maxima Latvija, C‑345/14, EU:C:2015:784, paragraph 16, and of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 24).
295 Thus, as was pointed out in paragraph 124 above and as the Commission correctly observed in recital 917 of the contested decision when correctly referring to the judgments of 6 July 2000, Volkswagen v Commission (T‑62/98, EU:T:2000:180, paragraph 178), and of 25 October 2005, Groupe Danone v Commission (T‑38/02, EU:T:2005:367, paragraph 150), there is no need to examine the effects on competition of an agreement or a concerted practice when its anticompetitive object has been established.
296 According to the case-law, certain types of coordination between undertakings reveal a sufficient degree of harm to competition to be regarded as being restrictions ‘by object’, so that there is no need to examine their effects. That case-law arises from the fact that certain forms of coordination between undertakings can be regarded, by their very nature, as being harmful to the proper functioning of competition (judgments of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraphs 184 and 185, and of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 26).
297 Consequently, it is established that certain collusive behaviour, such as that leading to horizontal price fixing by cartels, may be considered so likely to have negative effects, in particular on the price, quantity or quality of the goods and services, that it may be considered redundant, for the purposes of applying Article 101(1) TFEU, to prove that they have actual effects on the market. As pointed out in paragraph 138 above, experience shows that such behaviour leads to falls in production and price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers.
298 As the Commission essentially, and rightly, noted in recital 908 of the contested decision, it is clear from the case-law that that is true not only as regards conduct that consists in fixing the full final price of the goods or services concerned, but also conduct that consists in fixing of part of that price (see, to that effect, judgments of 21 February 1995, SPO and Others v Commission, T‑29/92, EU:T:1995:34, paragraph 146, and of 13 December 2001, Acerinox v Commission, T‑48/98, EU:T:2001:289, paragraphs 114 and 115), as well as conduct that is intended to prevent circumvention of the agreed discipline on prices and thus prevent the undertakings concerned from competing with one another (see, to that effect, judgment of 11 July 1989, Belasco and Others v Commission, 246/86, EU:C:1989:301, paragraph 18).
299 Contrary to what the applicant maintains, the fact that that case-law either concerned a system of ‘institutionalised regulation of prices and competition’ with the power to impose penalties including procedures to be observed by the members of the cartel in question, or concerned cartels in which the members were undertakings whose combined market shares were appreciably higher than those of the incriminated carriers, does not in any way render it irrelevant in the context of examining the present plea. The absence of that evidence in the present case is not capable of demonstrating that the agreements and practices at issue were not, by their very nature, harmful to the proper functioning of competition.
300 Nevertheless, as noted by the applicant, the assessment of whether an agreement or concerted practice reveals a sufficient degree of harm to competition that it may be characterised as a restriction of competition ‘by object’ requires regard, inter alia, to its objectives and the economic and legal context of which it forms a part. When determining that context, it is necessary to take into consideration the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the market or markets in question (judgment of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 53).
301 However, such an examination cannot lead the Court to assess the effects of the coordination concerned, since otherwise the distinction established in Article 101(1) TFEU would lose its effectiveness (see, to that effect, judgment of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraphs 72 to 82).
302 In the case of horizontal price-fixing agreements in particular, which constitute particularly serious breaches of the competition rules, such an examination may be limited to what is strictly necessary in order to establish the existence of a restriction of competition ‘by object’ (see judgment of 27 April 2017, FSL and Others v Commission, C‑469/15 P, EU:C:2017:308, paragraphs 106 and 107 and the case-law cited).
303 In recitals 908, 909, 1199 and 1208 of the contested decision, the Commission found that the conduct at issue was akin to a horizontal price-fixing cartel, even though it did not relate to the full final price of the services in question.
304 The Commission is therefore right to maintain in its statement of defence that it was entitled to confine itself to an examination of the relevant economic and legal context, limited to what was strictly necessary in order to characterise the agreements and practices at issue as a restriction of competition ‘by object’.
305 Contrary to what the applicant claims, the Commission’s examination of the relevant economic and legal context, in the contested decision, satisfies those requirements. In recitals 909 and 916 of that decision, the Commission thus explained that the ‘price [was] the main instrument of competition’, that the agreements and practices at issue were intended to ‘remove pricing uncertainty in the airfreight market …’ and thus ‘ensured that discipline was maintained in the market and that increases arising from the fuel indices were be applied in full and in a coordinated way thus removing pricing uncertainty’. As the Commission correctly observes, that analysis is based in particular on section 4 of that decision, which describes, in particular, the basic principles and structure of the cartel at issue. It must also be read in the light of the description of the freight sector and the applicable pricing arrangements, which the applicant itself acknowledges in section 2.1 of the contested decision.
306 Moreover, for a reason similar to that set out in paragraph 141 above, the applicant is not justified in claiming that the Commission failed to take into account a possible so-called ‘waterbed’ effect.
307 The Commission did not therefore err in finding, in recitals 903 and 910 of the contested decision, that the agreements and practices at issue had the object of restricting competition.
308 None of the arguments put forward by the applicant is capable of calling that conclusion into question.
309 In the first place, the fact that the relevant economic and legal context has been examined in greater detail in other decisions than in the contested decision is not such as to show that the Commission ought to have satisfied a stricter standard in the present case. Indeed, the Commission’s previous decision-making practice can be only indicative given that the circumstances of the cases are not identical (see, to that effect, judgment of 16 September 2013, Roca Sanitario v Commission, T‑408/10, EU:T:2013:440, paragraph 64 (not published)).
310 In the second place, the question whether the conduct at issue could be regarded as a ‘hardcore cartel’ is irrelevant for the purposes of determining whether it could be characterised as a restriction of competition ‘by object’ (see, to that effect, judgment of 13 October 2011, Pierre Fabre Dermo-Cosmétique, C‑439/09, EU:C:2011:649, paragraph 32).
311 The present plea must therefore be rejected.
6. The fourth plea in law, alleging a ‘manifest error of assessment of law and fact’ and breach of essential procedural requirements, the duty to state reasons and the rights of the defence
312 The applicant claims that the Commission made a ‘manifest error of assessment of law and fact’ and breached an essential procedural requirement, the duty to state reasons and its rights of defence by failing to define sufficiently precisely the scope and parameters of the single and continuous infringement. According to the applicant, the Commission excessively stretched the concept of a single and continuous infringement by largely basing the contested decision on the theory of a single and continuous infringement that began in December 1999 and to which the incriminated carriers adhered on different dates.
313 The present plea consists, in essence, of two parts, alleging, first, breach of the rules governing the burden of proof and, secondly, the vague, ambiguous and elusive nature of the findings made in the contested decision.
(a) The first part, alleging breach of the rules governing the burden of proof
314 The applicant claims that the Commission failed to discharge its burden of proving that the agreements and practices at issue satisfied the three components of a single and continuous infringement, which are the existence of a link of complementarity between the actions at issue, the intention to participate in an overall plan to attain an anticompetitive objective and awareness of the conduct of the other participants in the infringement.
315 In support of that line of argument, the applicant makes three complaints. In the first place, the Commission failed to establish sufficient links regarding the applicant’s disparate contacts with the other carriers. The Commission failed to sort out the relevant from the irrelevant, the lawful from the unlawful. Instead, it relied on matters which do not reveal unlawful conduct in reaching its finding of a single and continuous infringement, which was in breach of the principle that recourse to the concept of a single and continuous infringement cannot convert lawful conduct into unlawful conduct. The Commission also failed to identify in clear terms any agreement that infringed Article 101 TFEU and then to examine how that formed a single and continuous infringement. Nor did it attempt to reconcile the numerous differences in the various leniency applications, or obtain further particulars of general statements and assertions, or conduct an evaluation of the relative evidential weight of the events cited, or show how they were relevant.
316 In the second place, the Commission did not prove that the applicant had deliberately participated in an overall plan. It wrongly extrapolated the applicant’s intention to participate in such a plan from its bilateral and multilateral contacts with other carriers and from its public announcements of changes to a particular rate. In its reply, the applicant adds that such announcements were binding and not liable to be changed or retracted in response to the reactions of competitors. Such announcements are common in a lot of markets and it is normal for companies to take account of them when charting their own conduct on the market. They did not therefore arouse competition concerns, nor could they have operated as a form of monitoring mechanism.
317 In the third place, the Commission failed to establish that the applicant was aware of the anticompetitive activities of the other incriminated carriers.
318 The applicant adds that it is particularly important not to misuse the concept of a single and continuous infringement where a finding of an undertaking’s participation in a cartel is likely to have consequences for actions in damages.
319 The Commission disputes the applicant’s arguments.
320 It should be observed that the first complaint, alleging that the Commission failed to establish a link of complementarity between the various agreements and practices at issue, relates to the issue of proof of the single nature of the single and continuous infringement. Conversely, the second and third complaints, alleging, respectively, failure to establish the applicant’s intentional contribution to an overall plan and the absence of any express evidence that the applicant was aware of the anticompetitive activities of the other incriminated carriers, concern the extent to which the Commission was entitled to hold the applicant liable for the single and continuous infringement.
321 The Court considers it appropriate to examine those two matters separately.
(1) Proof of the single nature of the single and continuous infringement
322 According to settled case-law, an infringement of the prohibition in principle laid down in Article 101(1) TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an ‘overall plan’, because their identical object distorts competition within the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 41 and the case-law cited).
323 When determining whether there has been a single infringement and an overall plan, the fact that the various actions of the undertakings form part of an ‘overall plan’ on account of their identical object distorting competition within the common market, is decisive. For the purposes of that assessment, the at least partial identity of the undertakings concerned (see, to that effect, judgment of 13 September 2013, Total Raffinage Marketing v Commission, T‑566/08, EU:T:2013:423, paragraph 265 and 266 and the case-law cited), as well as the material, geographic and temporal overlap between the acts and conduct at issue may be relevant.
324 That applies, in particular, as regards the identical nature of the goods or services concerned, the identical nature of the detailed rules for implementation, the identical nature of the natural persons involved on behalf of the undertakings and the identical nature of the geographical scope of the practices at issue (see, to that effect, judgment of 17 May 2013, Trelleborg Industrie and Trelleborg v Commission, T‑147/09 and T‑148/09, EU:T:2013:259, paragraph 60).
325 The existence of links of complementarity between the various instances of conduct at issue, in the sense that each of them is intended to deal with one or more consequences of the normal pattern of competition, and, through interaction, contribute to the attainment of the set of anticompetitive effects desired by those responsible, within the framework of a global plan having a single objective, may also constitute objective evidence of the existence of an overall plan aimed at attaining a single anticompetitive objective (see, to that effect, judgments of 28 April 2010, Amann & Söhne and Cousin Filterie v Commission, T‑446/05, EU:T:2010:165, paragraph 92 and the case-law cited, and of 16 September 2013, Masco and Others v Commission, T‑378/10, EU:T:2013:469, paragraphs 22, 23 and 32 and the case-law cited).
326 However, contrary to what the applicant maintains, it is not necessary, for the purposes of characterising various instances of conduct as a single and continuous infringement, to ascertain whether they present such links. The notion of a ‘single objective’ requires only that it be ascertained whether there are any elements characterising the various instances of conduct forming part of the infringement which are capable of indicating that the instances of conduct in fact implemented by other participating undertakings do not have an identical object or identical anticompetitive effect and, consequently, do not form part of an ‘overall plan’ as a result of their identical object distorting the normal pattern of competition within the internal market (see, to that effect, judgment of 26 January 2017, Duravit and Others v Commission, C‑609/13 P, EU:C:2017:46, paragraph 121).
327 It follows that, even if it were to be established, the Commission’s alleged failure to demonstrate the existence of a link of complementarity between the agreements and practices at issue is not, in itself, capable of vitiating their classification as a single infringement.
328 In any event, it should be noted that the applicant’s argument has no factual basis. In recitals 872 to 883 of the contested decision, the Commission relied on six factors for the purpose of concluding that the conduct at issue formed part of a single infringement. Those factors include not only the existence of a single anticompetitive objective (recitals 872 to 876) and the fact that that conduct related to the same service (recital 877), but also the single nature of the infringement (recital 879). In its examination of the single nature of the infringement, in recital 879 of the contested decision, the Commission found as follows:
‘The contacts concerning the FSC, the SSC and the refusal to pay commission … therefore displayed a link of complementarity, in that each of them was intended to deal with one or more consequences of the normal pattern of competition, and, through that interaction, contribute to the attainment of the single objective desired by those responsible, within the framework of an overall plan.’
329 In the context of the present plea, the applicant has failed to adduce the slightest evidence to establish that that assessment was vitiated by error. The applicant has not even identified any instances of conduct which, in its view, have not been shown to be complementary to the various agreements and practices at issue. On the contrary, the applicant merely made vague and general assertions to the effect that the Commission applied a ‘catch-all’ attitude, ‘artificially connecting almost any contact or any behaviour with the application of the surcharges’ or even grouped together ‘disconnected and fragmentary events from all over the world [and] put them all together into a long and disjointed narrative’.
330 As regards the applicant’s arguments that the Commission failed to separate the relevant and lawful from the irrelevant and unlawful elements, to identify in clear terms any agreement contrary to Article 101 TFEU and then to examine how that formed part of a single and continuous infringement, and to reconcile the numerous conflicts in the various leniency applications, it must be noted that those arguments are not substantiated in any way. The applicant has thus failed, in the context of the present plea, to identify any unlawful or irrelevant evidence on which the Commission relied in concluding that the agreements and practices at issue amounted to a single infringement. Similarly, the applicant has failed to identify the numerous conflicts in the various leniency applications, which the Commission allegedly failed to reconcile. The applicant has also failed to explain how the Commission erred in not evaluating the relative evidential weight of the evidence adduced or demonstrating its relevance.
331 As regards the argument that the Commission failed to ask the incriminated carriers for information under Article 18 of Regulation No 1/2003, it should be noted that the applicant explained, at the hearing, that this was not a separate complaint. According to the applicant itself, this was merely one of a number of items of evidence intended to establish that ‘the Commission needed to find more precise information’.
332 It follows from the foregoing that the applicant has failed to establish that the Commission had erred in characterising the agreements and practices at issue as a single infringement.
(2) Proof of the applicant’s participation in the single and continuous infringement
333 According to the case-law, an undertaking which has participated in a single and complex infringement through its own conduct, which fell within the definition of an agreement or a concerted practice having an anticompetitive object for the purposes of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may be liable also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 42 and the case-law cited).
334 An undertaking may thus have participated directly in all the forms of anticompetitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, the undertaking may have participated directly in only some of the forms of anticompetitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is also entitled to attribute liability to that undertaking in relation to all the forms of anticompetitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 43).
335 It follows that three conditions must be met in order to establish participation in a single and continuous infringement, namely the existence of an overall plan pursuing a common objective, the intentional contribution of the undertaking concerned to that plan, and its awareness (proved or presumed) of the offending conduct of the other participants in which it did not participate directly (judgment of 16 June 2011, Putters International v Commission, T‑211/08, EU:T:2011:289, paragraph 35; see also judgment of 13 July 2018, Stührk Delikatessen Import v Commission, T‑58/14, not published, EU:T:2018:474, paragraph 118 and the case-law cited).
336 In recitals 749 and 881 of the contested decision, the Commission found that the applicant had been ‘involved’ in each of the three elements of the single and continuous infringement. It is apparent from recitals 882 to 883 of that decision that the Commission thus intended to find that the applicant had participated directly in each of those elements and not that it had directly participated in only some of them, but had been aware of all the other offending conduct planned or put into effect by the other incriminated carriers in pursuit of the single anticompetitive objective, or could reasonably have foreseen it and was prepared to take the risk.
337 In the context of the present plea, the applicant has not disputed that it directly participated in the three elements of the single and continuous infringement. In so far as it considers that the Commission ought to have established that it had the requisite knowledge of certain anticompetitive activities relating to those elements, but in which it did not participate directly, it should be borne in mind that it is for the Commission to prove that the undertaking concerned had the requisite knowledge of the anticompetitive conduct planned or put into effect by the other participants in the global cartel but in which it did not directly participate (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 67).
338 In order to do so, the Commission must adduce evidence that is sufficiently precise and consistent to establish that the undertaking concerned had such knowledge (see, to that effect, judgment of 20 March 2002, Sigma Tecnologie v Commission, T‑28/99, EU:T:2002:76, paragraph 51).
339 The Commission is not, however, required to establish that the undertaking concerned was aware, or should have been aware, in detail, of the concerted practices that took place in the context of the contacts at issue in which it did not participate. Nor is it necessary for it to establish that the undertaking concerned was aware, or should have been aware of all of those contacts (see, to that effect, judgment of 14 December 2006, Raiffeisen Zentralbank Österreich and Others v Commission, T‑259/02 to T‑264/02 and T‑271/02, EU:T:2006:396, paragraph 193).
340 The undertaking concerned must thus merely be aware of the general scope and the essential characteristics of the cartel as a whole (see judgment of 10 October 2014, Soliver v Commission, T‑68/09, EU:T:2014:867, paragraph 64 and the case-law cited).
341 As is apparent from paragraphs 230 and 231 above, the Commission described the general scope and essential characteristics of the cartel at issue in section 4.1 of the contested decision. The Commission further described the concerted practices relating to the FSC in section 4.3.2 of that decision, which is entitled ‘Nature of the illicit contacts between competitors concerning the fuel surcharge’, and explained that the same principles applied, mutatis mutandis, to the elements of the single and continuous infringement relating to the STS and to the refusal to pay commission.
342 It is apparent from the contacts at issue relied on against the applicant in recitals 750 to 754 of the contested decision that it was aware of all those principles. The examination of the numerous bilateral and multilateral contacts in which the applicant participated in various Member States and third countries shows that it could not have been unaware of the existence of a network of contacts in which there was an exchange of information and a coordination concerning the level, timing and local implementation of the FSC and SSC and the refusal to pay commission (see, in particular, recitals 130, 171, 173, 174, 191, 274, 279, 374, 393, 433, 503, 560, 594, 595, 640, 665, 667, 695, 696 and 700 of that decision). In the light of those contacts, it could not have been unaware of the shared expectation of market discipline as regards FSC, or of the existence of a multi-level structure. In view of Martinair’s statement cited in recital 210 of the contested decision and the geographic scope of the earlier announcements regarding the increase in FSC rates described in recitals 274, 279 and 346 of that decision, the applicant could also reasonably have been aware of and assumed the risk that the coordination and monitoring in question was intended to cover all routes worldwide.
343 Moreover, the applicant has confined itself, by means of general and unsubstantiated assertions, to criticising the Commission for not having established that the applicant had the requisite knowledge of the anticompetitive activities of the other incriminated carriers, in which it had not directly participated.
344 Nor is the applicant justified in complaining that the Commission failed to demonstrate that it had intended to contribute by its own conduct to the common objectives pursued by all of the incriminated carriers.
345 In that regard, it should be noted that the applicant’s line of argument is essentially based on six of the contacts at issue in the context of which Lufthansa sent its public announcements to its competitors, including the applicant (recitals 274, 279, 313, 346, 411 and 507).
346 That line of argument cannot succeed.
347 First of all, it must be observed that the Commission did not rely on one of those six contacts as regards the applicant, namely that described in recital 313 of the contested decision.
348 Next, as regards the five remaining contacts, it should be noted that they represent only a fraction of approximately 50 contacts which the Commission relied on when concluding that the applicant participated in the element of the single and continuous infringement relating to the FSC. The applicant has failed to explain why the Commission was not entitled to rely on those other contacts, which include several multilateral meetings at which the FSC was discussed, when concluding that the applicant intended to contribute by its own conduct to the common objectives pursued by all of the incriminated carriers.
349 Lastly, the applicant may not rely on the public nature of the information disseminated in the context of the contacts described in recitals 274, 279, 346, 411 and 507 of the contested decision. First, it should be noted that the exchange of publicly available information infringes Article 101(1) TFEU, where it underpins another anticompetitive arrangement (see, to that effect, judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 281).
350 It is apparent from recitals 118, 121, 125, 706 and 848 of the contested decision that the contacts, such as those described in recitals 274, 279, 346, 411 and 507 of that decision served to underpin such an arrangement.
351 Moreover, it should be observed that, in the context of the contacts described in recitals 274, 279, 346, 411 and 507 of the contested decision, Lufthansa did not merely communicate publicly available information. Rather, Lufthansa sent collective emails, thus revealing to all the addressees the identity of the carriers concerned (see recital 797 of the contested decision).
352 Contrary to what the applicant claims, paragraph 63 of the Guidelines on the applicability of Article [101 TFEU] to horizontal cooperation agreements (OJ 2011 C 11, p. 1) does not invalidate that analysis. That paragraph concerns ‘unilateral announcement[s] that [are] also genuinely public, for example through a newspaper’. It is apparent that the present case does not concern mere unilateral announcements, but rather emails by which the author disseminated information to a number of its competitors.
353 The present part of the plea must therefore be rejected.
(b) The second part, alleging that the findings made in the contested decision are vague, ambiguous and elusive
354 The applicant claims that the loose and incoherent presentation of the case in the contested decision extends the concept of a single and continuous infringement beyond logical limits. The applicant puts forward three examples in support of that claim.
355 In the first place, the applicant submits that it is not possible to discern whether the Commission concludes that use of the FSC index by the air transport sector is in itself an infringement.
356 In the second place, the applicant complains that the Commission devotes a great deal of discussion – the relevance of which it does not explain – to events and communications that occurred at a time when it did not yet have jurisdiction in a procedure such as that which it initiated in the present case.
357 In the third place, the applicant claims that the lack of any clear boundary between lawful and unlawful behaviour is aggravated both by the Commission’s failure to consider the legal and economic context and its wholly unexplained decision not to pursue the non-incriminated carriers. In its reply, the applicant clarifies that this is not an argument alleging discrimination, but one that concerns the probative weight that can be attributed to certain contacts in which the non-incriminated carriers participated, which the Commission, without explanation, regarded as non-infringing conduct with regard to the non-incriminated carriers and infringing conduct with regard to itself. The contacts between the incriminated carriers and the addressees of the Statement of Objections who were not incriminated account for 77% of the 584 contacts identified in the contested decision.
358 The Commission disputes the applicant’s arguments.
359 It must be stated at the outset that the present part of the plea takes the form, first, of vague and general assertions as to the loose and incoherent nature of the contested decision and the excessive stretching of the concept of a single and continuous infringement and, secondly, of three ‘examples’ cited in support thereof. In those circumstances, lest it should search for and identify for itself among the documents before the Court the other potential inaccuracies and inconsistencies that the applicant might have sought to rely on or even reconstruct the present part of the plea by giving it a scope which might not have been intended by the applicant, and thus infringe the principle of delimitation of the subject matter of an action by the parties and the Commission’s rights of defence (see paragraph 221 above), the Court must confine its examination to the merits of those three examples.
360 None of those examples is capable of establishing that the contested decision is vitiated by inconsistency or imprecision.
361 In the first place, as regards the complaint alleging that the Commission failed to specify whether the FSC index, in itself, constituted an infringement, it should be noted that, at the hearing, the applicant stated that it was referring to ‘the IATA meeting’. It is apparent from paragraph 87 of the application that the applicant thus intended to refer to the meeting of 4 April 2000 of the IATA cargo committee, during which the possibility of ceasing to publish the fuel price index provided for in a resolution was discussed following the disapproval of that resolution by the United States Department of Transportation.
362 However, the Commission did not infer from that meeting that the use of an index constituted, in itself, an infringement of the competition rules. More generally, the Commission did not find in the contested decision that there had been such an infringement. As is apparent from recitals 115, 120 and 154 to 156 of that decision, the Commission referred to the meeting of 4 April 2000 of the IATA cargo committee in the context of anticompetitive discussions relating to the reintroduction of a FSC following the decision of the United States Department of Transportation.
363 In the second place, as regards the complaint concerning the length of time the Commission spent on events and communications that were allegedly outside its jurisdiction, it must be observed that the applicant’s argument is indissociable from that on which it relied in support of the first plea. That plea was rejected in paragraphs 214 to 234 above and the present argument must be rejected for the same reasons.
364 In the third place, as regards the complaint alleging aggravation of the lack of any clear boundary between lawful and unlawful behaviour, it must be observed that the applicant is not justified in claiming that there was a failure to examine the relevant economic and legal context, for reasons similar to those set out in paragraphs 305, 306 and 330 above.
365 Nor is the applicant justified in criticising the Commission for not providing an explanation for waiving its right to pursue the non-incriminated carriers.
366 First, it must be borne in mind that the Commission was under no obligation to set out in the contested decision the reasons why other carriers were not held liable for the single and continuous infringement. The obligation to state the reasons on which a measure is based cannot encompass an obligation for the institution from which it emanates to give reasons for the fact that it did not adopt other measures of a similar kind addressed to third parties (judgment of 8 July 2004, JFE Engineering v Commission, T‑67/00, T‑68/00, T‑71/00 and T‑78/00, EU:T:2004:221, paragraph 414).
367 Secondly, in so far as the applicant maintains that the Commission could not, without undermining the coherence of the contested decision, rely on contacts involving non-incriminated carriers against the applicant, it must be borne in mind that, as is apparent from recital 845 of the contested decision, it is not necessary for every piece of evidence produced by the Commission to support the firm conviction that every element of the infringement was committed. It is sufficient if the body of evidence relied on by the Commission, viewed as a whole, and whose various elements are able to reinforce each other, meets that requirement (see judgment of 16 November 2011, Sachsa Verpackung v Commission, T‑79/06, not published, EU:T:2011:674, paragraph 60 and the case-law cited).
368 The Commission was therefore correct in stating in recital 716 of the contested decision that it ‘[did] not necessarily hold every recital … and every single item of evidence therein to be of equal value’ and that ‘rather, the recitals to which reference [was] made [formed] part of the overall body of evidence [on which it relied] and [had] to be evaluated in this context’.
369 However, it is not shown that the Commission had a body of evidence against the non-incriminated carriers involved in the contacts in question equivalent to that which it had against the applicant.
370 The present part must therefore be rejected, as must the present plea in its entirety.
7. The fifth plea in law, alleging errors of fact and manifest errors of assessment
371 The present plea, by which the applicant claims that the Commission failed to adduce sufficiently reliable evidence in support of its conclusions and to establish to the requisite legal standard the facts on which it based its findings, consists of four parts. In essence, they allege, first, errors of fact and of assessment, secondly, errors in establishing the applicant’s participation in the elements relating to the SSC, the FSC and the refusal to pay commission, thirdly, that the Commission used the concept of a single and continuous infringement as a substitute for proof and, fourthly, that the Commission failed to establish the ‘worldwide’ nature of that infringement.
(a) Admissibility of Annexes A.13 and A.14
372 As a preliminary point, it is necessary to rule on the pleas of inadmissibility raised by the Commission, which are disputed by the applicant, in relation to Annexes A.13 and A.14, in so far as they contain new arguments that were not included in the application.
373 In that regard, it should be borne in mind that, 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, in accordance with Article 76(1)(d) of the Rules of Procedure, must appear in the application (judgment of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 94).
374 Furthermore, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (judgment of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 94 and the case-law cited).
375 Accordingly, an annex to the application may be taken into consideration only in so far as it supports or supplements arguments expressly set out by the applicant in the body of the application and in so far as it is possible for the Court to determine precisely which matters contained in the annex support or supplement those arguments (see, to that effect, judgment of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 99).
376 In the present case, Annexes A.13 and A.14 are entitled, respectively, ‘Rebuttal of Specific Allegations against Cargolux’ and ‘Table of Specific Allegations Remaining against Cargolux’.
377 Annex A.13 consists of an eight-page argument to the effect that some of the evidence relied on against the applicant is either irrelevant or does not constitute reliable evidence of the applicant’s participation in the single and continuous infringement. That annex, which is 90 pages long, also includes a table summarising the arguments put forward in respect of each of those pieces of evidence and the material in the Commission’s administrative file on which the arguments are based. Annex A.14, which is 92 pages long, consists of a table setting out the arguments challenging the probative value of the evidence relied on against the applicant that is not discussed in the context of Annex A.13, and the material in the Commission’s administrative file on which those arguments are based.
378 In the application, reference is made to those two annexes, on occasion when referring to part of the Commission’s administrative file contained therein which supports the argument developed in the text of the application or, more often, in connection with ‘more detailed comments’, ‘discussed further’ or further examples or ‘further detail’, contained in the annex, which relate to recitals of the contested decision citing the evidence relied on against the applicant.
379 As regards the latter category of references, it should be noted that, first, they do not specifically refer to the relevant passages of the annexes at issue. Secondly, they do not relate to sufficiently specific points of the application itself, in particular where it is stated that ‘a more detailed list providing further detail on the Commission errors identified above is attached as Annex A.13’. Thirdly, several of those references do not relate to any of the legal arguments in the application that they claim to supplement, for example when the applicant states ‘for a further example of the Commission’s incorrect interpretation of evidence related to the FSC, see recital 492, discussed further at Annex A.13’, or when the applicant makes reference to recital 560 of the contested decision being ‘discussed further at Annex A.14’, whereas in the application it merely asserts it to be irrelevant. Fourthly, where there are arguments in the application in connection with a recital which is the subject of ‘more detailed comments’ in the annexes at issue, those ‘comments’ generally include new arguments. Thus, in relation to recital 609 of the contested decision, which is relied on in the application in the context of an argument concerning the local nature of the contacts relating to the SSC, reference is made to Annex A.13 and an argument relating to the passive nature of the addressees of the email referred to in that recital, the lack of impact that email had on the applicant’s commercial policy and the Commission’s lack of jurisdiction with regard to the routes covered by that email.
380 In accordance with the case-law referred to in paragraphs 373 to 375 above, it is therefore only in so far as Annexes A.13 and A.14 support or supplement arguments expressly set out by the applicant in the body of the application, and in so far as it is possible for the Court to determine precisely what are the matters which they contain that support or supplement those arguments, that they will be taken into account.
(b) The first part, alleging errors of fact and assessment
381 The applicant claims that the contested decision is vitiated by numerous errors of fact and assessment. In that regard, the applicant cites six ‘examples’ of such errors.
382 First, the evidence referred to in recitals 142 and 168 of the contested decision predates the starting point of its participation in the single and continuous infringement.
383 Secondly, the Commission cites as evidence of collusive behaviour numerous examples of what is no more than intelligence gathering of market information based on publicly available information.
384 Thirdly, the Commission cites contacts and meetings in which non-incriminated carriers participated, yet, even though it did not also find those carriers liable for the single and continuous infringement, it provided no explanation in that regard.
385 Fourthly, the Commission refers to public announcements on the FSC that were sent to a wide distribution list, which, given their nature, cannot be regarded as building blocks of a single and continuous infringement and whose evidential value is, at the very least, greatly reduced.
386 Fifthly, the Commission minimises the importance of a letter of 5 September 2008 from the Hong Kong Civil Aviation Department (‘CAD’) to the President of the Commission and makes no mention of a further letter from the CAD of 3 September 2009 stating that collective applications regarding surcharges had to be submitted to it for approval.
387 Sixthly, the Commission relies on contacts relating to EU-third country routes, non-EU EEA-third country routes and EU-Switzerland routes that took place before the date on which it acquired jurisdiction in respect of those routes. By relying on such contacts, it unlawfully extended the scope of its findings of infringement. In any event, the contested decision does not make it clear to what extent those contacts made it possible to establish an infringement on intra-EEA routes.
388 The Commission disputes the applicant’s arguments.
389 It is appropriate to examine in turn each of the ‘examples’ of errors relied on by the applicant which constitute the six complaints raised in support of the present part of the plea.
(1) The use of evidence predating the infringement period found against the applicant
390 At the outset, it should be noted that the Commission did not rely on the contact described in recital 168 of the contested decision against the applicant.
391 That being so, it must be borne in mind that, in accordance with the case-law referred to in paragraph 229 above, the Commission is entitled to rely on contacts predating the infringement period in order to construct an overall impression of the situation and thus corroborate the interpretation of certain items of evidence. The contact described in recital 142 of the contested decision represents 1 of the 10 contacts at issue that the Commission relied on in recital 752 of that decision in finding that ‘some evidence indicates further contacts concerning the FSC’. Accordingly, the fact that the contact described in recital 142 of the contested decision predates the date established by the Commission as the start of the applicant’s participation in the infringement is, in itself, incapable of establishing an error on the part of the Commission.
392 The applicant nevertheless claims that the contact described in that recital is not, in essence, capable of corroborating its participation in collusion relating to the FSC in so far as it refers to information that ‘most [carriers], including [Lufthansa]/[AF]/ … /[SAS]/[the applicant], etc., will introduce a FSC ex Europe’, which had been the subject, concerning the applicant, of a press release several days earlier. In that regard, it must be stated that, even if the applicant issued a press release announcing the introduction of the FSC several days earlier, the contact referred to in recital 142 relates to an FSC level (EUR 0.20/0.20 United States dollars (USD) per kg) that is different from that announced in the press release (EUR 0.10/USD 0.10 per kg). Moreover, that information is not only reported in that contact. In the ensuing internal email chain, it is stated that ‘we should move only after we ensure support from the “major” carriers in our market place, after ensuring we give them support in theirs’. It follows that that contact was, at the very least, in conjunction with other evidence, capable of contributing to establish the applicant’s participation in the element of the single and continuous infringement relating to the FSC in the context of a larger body of evidence.
(2) The taking into account of evidence that was no more than ‘intelligence gathering of market information based on publicly available information’
393 The present complaint, which relates to recitals 246, 250, 350, 360, 361, 374, 476, 478, 507, 612, 614, 636, 646, 649 and 650 of the contested decision, should be understood as being directed against the Commission’s findings concerning the applicant’s participation in the single and continuous infringement, in so far as they rely on evidence that merely reveals the knowledge that the other carriers had of its public announcements.
394 In that regard, first of all, it should be noted that the Commission did not, in the contested decision, rely on the contacts described in recitals 360, 361, 612 and 636 thereof against the applicant.
395 Next, the contact described in recital 507 concerns information relating to Lufthansa’s changes of the FSC, which Lufthansa sent to a number of its competitors, including the applicant. The Court has already held, in paragraphs 349 to 352 above, that that contact could be taken into account as a support for the anticompetitive mechanism underlying the single and continuous infringement, as regards the element concerning the FSC.
396 Moreover, it is apparent from the content of several of the contacts described in the recitals cited in paragraph 393 above that they do not merely refer to information from a public announcement made previously by the applicant.
397 Thus, a number of those contacts constitute evidence, either indirectly (see recitals 478, 646, 649 and 650 of the contested decision), or directly (see recitals 374 and 614 of the contested decision), of the applicant’s participation in the cartel at issue, in so far as they reveal its contribution to the introduction and coordination of the FSC and the SSC. Accordingly, recital 374 of the contested decision reads as follows: ‘In an email on 7 June 2004, [an employee of the applicant] forwarded to [British Airways] information about FSC adjustment made by all major carriers in June 2004.’ As regards the internal email from a local employee of Qantas in Singapore, referred to in recital 478 of the contested decision, it states, with regard to the FSC, that ‘KLM/AF has already confirmed at [0.94 Singapore dollars (SGD)] with effective 07 Jul 2005. [Lufthansa]/[the applicant] will likely follow the same as KLM/AF as they are talking to each other’. As regards the SSC, recital 614 of the contested decision describes in particular an email sent by an employee of the applicant to the French cargo airline association, which reads as follows: ‘[The applicant’s] position is as follows: we will apply an insurance surcharge of 0.10 Euro starting October 8 on all destinations in our network. Therefore act’. In addition, in recitals 646, 649 and 650 of the contested decision, reference is made to a meeting of representatives of a number of carriers, including the applicant, in Nairobi (Kenya) on 1 October 2001, from which it became apparent, inter alia, that ‘the [carriers] … are all willing to jointly implement [an SSC] of maximum USD 0.05’.
398 Lastly, as regards the evidence described in recitals 246, 250, 350 and 476 of the contested decision, the applicant seeks to establish that they relate to public announcements it had made previously by submitting to the Court a copy of the press releases concerned.
399 As regards the press release of 6 September 2002 announcing a change in the FSC rate applied by the applicant, with effect from 21 September 2002, it must be noted that its probative value is called into question, first, by the statements made by British Airways in the context of its leniency application (see footnote 246 to the contested decision) that that change was not made public until 10 September 2002 and, secondly, by the printout of a page from the applicant’s website, included in the investigation file and submitted by the Commission as an annex to its rejoinder, from which it is also apparent that the announcement of that amendment was not made until 10 September 2002. It follows that the applicant has not proved to the requisite legal standard that the change in its FSC rate, reported internally by British Airways on 9 September 2002 (see recital 246), had been made public before that date.
400 Moreover, even if, as the applicant maintains, its public announcement of the change to its FSC took place on 24 June 2005, it is apparent from recital 476 of the contested decision that Martinair was not yet aware of it, but was aware that that announcement was going to be made since it stated ‘first I would like to know what [the applicant] and [Lufthansa] [are] going to do. I expect more info later today’. The applicant does not claim or establish that the intended date of its public announcement was itself generally known. Accordingly, that contact, contrary to what the applicant claims, constitutes, at the very least, evidence capable of contributing to establishing, in conjunction with other evidence, the applicant’s participation in the single and continuous infringement, as regards the element concerning the FSC, in the context of a larger body of evidence.
401 In contrast, it is common ground that the contact of 11 September 2002, referred to in recital 250 of the contested decision, took place after the applicant’s public announcement regarding the change to its FSC rate. Similarly, it must be held, in the absence of any evidence to the contrary, that the applicant has established that the contact of 29 April 2004, referred to in recital 350, took place after the announcement regarding the change to its FSC rate on 27 April 2004.
402 That being noted, it must be observed that recital 250 of the contested decision describes an internal Swiss email stating that it had decided to change its FSC rate ‘after bi-lateral talks on the issue and general support in all markets’, and adds that ‘we have confirmation of implementation by following carriers at the moment: [Lufthansa] 23.9/[British Airways] 23.9/KLM 1.10/[the applicant] 21.9/… 23.9’. Although that information had indeed been made public the previous day, it can, at the same time, reasonably be inferred from that evidence that the said change followed exchanges on that issue and that Swiss had received ‘confirmation’ of the date on which the applicant, in particular, would implement the change to the FSC on its side. Furthermore, it is apparent from recital 246 of the contested decision that that information had been shared by the applicant with other carriers even before its public announcement. Therefore, although the evidence set out in recital 250 of the contested decision cannot, in itself, establish that the applicant took part in the single and continuous infringement, it is capable of contributing to establishing that infringement in the context of a larger body of evidence.
403 Recital 350 of the contested decision reads as follows:
‘In an internal [Swiss] email on 29 April 2004 concerning the decision to increase the FSC competitor action is summarised. The following information was noted: “[British Airways] decision taken at next commercial meeting next Wednesday; … stand by, no decision taken; … not decided yet (just rumours to go up according [Lufthansa]); KL[M] will decide Wednesday, 5.5.04; [Japan Airlines] will wait until home carrier decide; [the applicant] increase to 0.20EUR start 11.05; … increase to 0.20 USD start 20.05.’”
404 It is apparent from that evidence that its author had at its disposal a body of information relating to the intentions of several carriers to change their FSC rate, some of which was clearly not public since their indecision in that regard is mentioned. It should also be noted, as regards the applicant, that the contested decision, in recitals 338, 340, 342 and 354 thereof, refers to exchanges between the applicant and several other carriers over the same period (April to May 2004), at least one of which is also mentioned in the email referred to in recital 350 of the contested decision, concerning the increase in the FSC rate. Accordingly, although the evidence set out in recital 350 is not capable, by itself and in the light of the findings made in paragraph 401 above, of supporting the firm conviction that the applicant took part in the single and continuous infringement, it is capable of contributing to establishing that infringement in the context of a larger body of evidence.
405 In the light of the foregoing, it is appropriate to reject the complaint alleging that the Commission erred in relying on evidence that was no more than ‘intelligence gathering of market information based on publicly available information’.
(3) The taking into account of contacts in which non-incriminated carriers participated
406 The present complaint must be rejected in so far as it alleges, in essence, an inadequate statement of reasons, in accordance with the case-law referred to in paragraph 366 above. Even if the applicant also intended to argue that, by proceeding in that way, the Commission infringed the principle of equal treatment, it is sufficient to note that the applicant neither alleges nor, a fortiori, establishes that the body of evidence available to the Commission against the non-incriminated carriers involved in the contacts in question was equivalent to that which it had against the applicant. Lastly, the applicant cannot claim that the contacts and meetings in question were legitimate on the sole ground that non-incriminated carriers took part in them, since the incrimination of a carrier depends not on the probative value of a piece of evidence taken in isolation, but on the whole body of evidence relied on against it.
(4) The taking into account of public announcements on the FSC that were sent to a wide distribution list
407 It must be held that the applicant has failed to identify the contacts, described in the contested decision, that it claims concerned public announcements on the FSC that were sent to a wide distribution list. Even if the applicant intended to refer here to the contacts where Lufthansa sent its competitors its public announcements relating to the change of the FSC, reference should be made to paragraphs 349 to 352 above, in which the Court held that they could be taken into account as a support for the anticompetitive mechanism underlying the single and continuous infringement, as regards the element concerning the FSC.
(5) The failure to take sufficient account of the letters from the CAD of 5 September 2008 and 3 September 2009
408 It should be noted that, in recital 988(c) of the contested decision, the Commission described the letter of 5 September 2008 which the Hong Kong CAD sent to the President of the Commission and analysed it succinctly. According to the Commission, it is apparent from that letter that the CAD stated that the collective applications of carriers relating to the FSC were both legal and desirable in administrative terms without, however, mentioning any prohibition imposed on carriers on filing an individual application. The applicant has not adduced any evidence to refute that reading and merely stated that the Commission ‘down-plays considerably the significance of [that letter]’.
409 As regards the letter of 3 September 2009, the applicant again makes general and unsubstantiated assertions. Moreover, its claim that the CAD stated in that letter that ‘agreement on joint applications was mandatory’ does not prove that the considerations set out in recital 988(c) of the contested decision are incorrect. The obligation for carriers making a joint application to obtain authorisation from the CAD is not at issue, only the alleged obligation to act collectively is. In any event, the letter of 3 September 2009 merely sets out the conditions required by the CAD when the CSC of the BAR and the transporters consider a collective application relating to the FSC based on an index. In contrast, it does not refer to there being a general obligation to file a collective application for an FSC, nor to it being impossible to file an individual application for a fixed FSC. It is on the existence of such a possibility that the Commission’s conclusions, in recital 992 of the contested decision, relating to the absence of State constraints in Hong Kong justifying the non-application of Article 101 TFEU. Accordingly, the letter of 3 September 2009 is not capable of calling into question the contested decision in that regard.
410 In the light of the foregoing, the present complaint must be rejected.
(6) The allegedly unlawful extension of the scope of the findings of infringement
411 In so far as the applicant complains of the allegedly unlawful extension of the scope of the findings of infringement by reference to contacts in relation to EU-third country routes, non-EU EEA-third country routes and EU-Switzerland routes before the date on which the Commission acquired jurisdiction in that regard, it must first of all be borne in mind, as noted in paragraph 217 above, that the Commission did not find, in the operative part of the contested decision, any infringement of Article 101 TFEU, Article 53 of the EEA Agreement or Article 8 of the EC-Switzerland Air Transport Agreement, respectively, on EU-third country routes before 1 May 2004, non-EU EEA-third country routes before 19 May 2005 and EU-Switzerland routes before 1 June 2002.
412 The applicant nevertheless considers that the Commission rendered the contested decision unlawful by referring to contacts relating to those routes which took place before those dates. The applicant cites, as ‘examples’, 17 recitals of the contested decision, to which the Court’s examination must be limited (recitals 171, 173, 174, 295, 504, 560, 594, 595, 618, 646, 649, 650, 660, 665, 667, 668 and 669).
413 First of all, it is apparent from the examination of the first plea that, even if they relate exclusively to routes which, in the periods at issue, fell outside the Commission’s jurisdiction, the Commission was justified in relying on the contacts described in recitals 171, 595, 649 and 667 in order to create an overall picture of the cartel at issue and thus support its interpretation of the other evidence it relied upon (see paragraph 234 above).
414 Next, the contacts described in recital 560 of the contested decision took place in Italy at the end of 2005 and involved several European carriers. Accordingly, it is not apparent from that recital that those contacts related to conduct which was liable to fall outside the Commission’s jurisdiction, either temporally or geographically. It should also be noted that the applicant does not substantiate in any way, in the application, its claim that recital 560 is irrelevant, since reference to an annex cannot remedy the shortcomings of its arguments in that regard (see paragraph 379 above). As regards the ‘coffee round’ of 22 January 2001 described in recitals 173 and 174 of the contested decision, it has not been established that it exclusively concerned routes to third countries. In fact, Martinair’s statement, relied on by the applicant, merely states that, in the informal meetings (‘coffee rounds’), which included the meeting of 22 January 2001, there was, ‘as such’, no sub-group dedicated to Europe. It follows, a contrario, that carriers were likely to address the question of the FSC applied to intra-EEA routes irrespective of the context in which the informal meeting was convened. Moreover, Martinair’s internal memorandum, described in recital 174, confirms that interpretation in so far as it is apparent that the FSC rates referred to during the informal meeting of 22 January 2001 were not limited to specific routes.
415 Lastly, it must be held that the other contacts cited by the applicant were part of the ‘multi-level structure’ cartel described by the Commission in the contested decision (see paragraphs 230 and 231 above). Therefore, even if they related exclusively to routes and periods which fell outside the Commission’s jurisdiction, they were at the very least capable of creating an overall picture of the cartel at issue and of supporting the interpretation of the other evidence relied upon, in accordance with the case-law referred to in paragraph 229 above.
416 First, those contacts concerned, in whole or in part, the introduction and implementation of surcharges in Asia, in particular Hong Kong (recitals 504, 618, 660, 665, 668 and 669) and Singapore (recital 295), Africa (recitals 646 and 650) and on routes between third countries and France (recital 594). Secondly, numerous contacts either involved employees in the head office of the incriminated carriers or referred to instructions from or communications with such employees (recitals 594, 618, 646 and 650). Thirdly, the vast majority of those contacts were contemporaneous with discussions between the head offices or decisions taken at head office level concerning surcharges (paragraphs 295, 504, 594, 646, 650, 668 and 669). Fourthly, many of those contacts took place in the context of, or ancillary to, local associations of carrier representatives (recitals 295, 618, 660, 665 and 668).
417 In the light of the foregoing, it must be held that the Commission did not err in relying, in the contested decision, on the contacts described in recitals 171, 173, 174, 295, 504, 560, 594, 595, 618, 646, 649, 650, 660, 665, 667, 668 and 669 to establish the applicant’s participation in the single and continuous infringement.
418 As regards the applicant’s complaint relating, in essence, to an insufficiently reasoned use of those contacts to establish its participation in the single and continuous infringement on intra-EU and intra-EEA routes, that complaint is indissociable from the complaint it raised in the context of the second part of the fourth plea, which was rejected by the Court in paragraph 363 above, and with the first plea, rejected in paragraphs 214 to 234 above. That complaint must therefore be rejected without there being any need to rule on the plea of inadmissibility raised by the Commission at the hearing, on the ground of failure to comply with Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure.
419 The present complaint must therefore be rejected and, accordingly, it is necessary to reject the first part of the plea in its entirety.
(c) The second part, alleging, in essence, errors in establishing the applicant’s participation in the elements relating to the SSC, the FSC and the refusal to pay commission
420 In the context of the present part of the plea, the applicant claims, in essence, that the Commission failed to establish its participation in the various elements of the single and continuous infringement relating, respectively, to the SSC, the FSC and the refusal to pay commission.
(1) Proof of the applicant’s participation in the element relating to the FSC
421 The applicant claims that the only reliable evidence against it, prior to June 2005, for the purpose of establishing its participation in the element of the single and continuous infringement relating to the FSC relates to ‘comfort calls’ with Lufthansa, AF, KLM and Martinair. The other evidence does not demonstrate its participation in that element of the single and continuous infringement.
422 Thus, first, the meeting of 22 January 2001, which the Commission takes as the starting point for the applicant’s participation in the infringement, did not indicate infringing conduct since it related solely to routes to third countries and, in any event, was the subject of an objection which was dropped by the Commission in the contested decision.
423 Secondly, AF’s first statement in the context of its leniency application cannot be regarded as firm evidence of contacts between AF, Lufthansa and the applicant throughout the period at issue, that is to say, from February 2000 to the beginning of 2006. Such an interpretation is, moreover, contradicted by the statements made, in the context of their leniency applications, by Lufthansa, Martinair and KLM and by a subsequent statement by AF.
424 Thirdly, recital 191 of the contested decision provides no concrete indication of a contact between the applicant and Martinair in November 2001.
425 Fourthly, there is no evidence in the file of regular telephone calls between the applicant and other carriers prior to 2003. All the evidence on which the Commission relies relates to ‘comfort calls’ with KLM, Lufthansa and Martinair from 2003. The first involvement of the applicant in anything much beyond ‘comfort calls’ dates from 10 June 2005.
426 Fifthly, the meetings on which the Commission relies in paragraph 167 of the contested decision related exclusively to topics other than surcharges and it is unlikely that they concerned routes other than routes to third countries.
427 Sixthly, there is no direct evidence of the applicant’s attendance at the meeting held in Amsterdam (Netherlands) in August 2004. The statement made by Martinair in its leniency application does not mention that the applicant was present at that meeting and the applicant denies attending.
428 Seventhly, the Commission was wrong to rely on a statement that the applicant made, in 2005, about its fear that ‘a freight forwarder [might] break out’, to describe the purpose of the contacts at issue over the whole of the infringement period.
429 The Commission disputes the applicant’s arguments.
430 As a preliminary point, the Court notes that the applicant does not dispute, in the context of the present complaint, that it participated in the element of the single and continuous infringement relating to the FSC. The applicant complains, however, that the Commission found that that participation was of ‘long duration’, stating that before June 2005 reliable evidence available to the Commission was limited to ‘comfort calls’ with Lufthansa, AF, KLM and Martinair.
431 In that regard, it should be noted that the applicant refers, in its arguments, to only a small part of approximately 50 contacts that the Commission relied on when concluding that it participated in the element of the single and continuous infringement relating to the FSC, without providing further explanations in that regard. However, many of those contacts predate June 2005 and are not limited to ‘comfort calls’ (see paragraph 437 below). Moreover, the reliability as evidence of those ‘comfort calls’ is not effectively disputed, as is apparent from paragraph 438 below. The applicant’s claim concerning the limited scope of ‘reliable’ evidence of its participation before June 2005 must, therefore, from the outset, be rejected as insufficiently substantiated.
432 That said, it is necessary to examine the applicant’s arguments seeking to call into question the probative value of the contacts to which it expressly refers. To that end, the Court, in accordance with the considerations set out in paragraph 380 above, will not take into account the arguments against the contacts described in recitals 210, 225, 475, 492, 516 and 581 of the contested decision, since those contacts are not mentioned in the application and appear only in Annexes A.13 and A.14. Moreover, the contacts described in recitals 475, 516 and 581 are not relied on against the applicant in the contested decision (see recitals 750 to 752).
433 First, as regards the challenge to the probative value of the evidence relating to the meeting of 22 January 2001, described in recitals 173 and 174 of the contested decision, it must be observed that, although it is apparent from those recitals that that meeting concerned an aspect of the cartel at issue that was dropped by the Commission in the contested decision, it is also apparent that the FSC was indeed discussed. That is confirmed by the content of Martinair’s internal memorandum referred to in recital 174 of the contested decision and submitted by the Commission before the Court.
434 Secondly, as regards the calling into question of the significance of AF’s statements described in recital 127 of the contested decision, the fact that the ‘comfort calls’ were, by AF’s own admission, less regular with the applicant than with Lufthansa is not inconsistent with the statement that the contacts in question were made, both with Lufthansa and the applicant, between February 2000 and the beginning of 2006. The applicant is therefore wrong to infer that AF’s statements are not capable of supporting the finding that it participated in the element relating to the FSC for the whole of the infringement period. Similarly, the fact that KLM, Martinair and Lufthansa stated that they began bilateral contacts with the applicant on the subject of the FSC only from 2003 is not inconsistent with AF’s assertion that, in its case, such contacts with the applicant began in February 2000. Moreover, as regards Lufthansa, that assertion is contradicted by the statements referred to in recital 167 of the contested decision, according to which Lufthansa’s head office had bilateral contacts with the applicant in 2001. Lastly, as regards AF’s subsequent statement made in the context of its leniency application, it is clear from its introduction that it was simply intended to supplement the original statement and was therefore not intended to reverse the information provided therein.
435 Thirdly, it is not disputed that the internal email of Martinair described in recital 191 of the contested decision concerned the intentions of competing carriers in relation to the cancellation of the FSC and states, in particular: ‘[Lufthansa]/AF/ … /[the applicant]/ …: quick call learned no changes yet’. It follows that the applicant’s intentions concerning the FSC had been communicated to at least one of its competitors and, plausibly, that that information had been directly shared by it with Martinair by means of a ‘quick call’. It follows that, contrary to what the applicant claims, the Commission was justified in using it as evidence, among other information and evidence (recitals 130, 210, 476 and 569 of the contested decision), of collusive contacts between the applicant and Martinair in respect of the element relating to the FSC.
436 Fourthly, the applicant’s claim that there is no evidence of regular telephone calls between it and other carriers before 2003 is not capable of calling into question the finding that it participated in the element of the single and continuous infringement relating to the FSC in 2001 and 2002. That finding is based on numerous pieces of evidence in the file, relating both to ex post statements (recitals 127, 167 and 210 of the contested decision) and contemporaneous documentary evidence (recitals 142, 171, 173, 174, 191, 225, 246 and 250 of the contested decision).
437 The applicant’s claim that its first involvement in ‘anything much beyond comfort calls’ dated from 10 June 2005 must also be rejected as being both inaccurate and irrelevant. In the first place, several contacts prior to that date, in which the applicant participated, consisted, inter alia, of multilateral meetings and personal contacts concerning the STC (see, for example, recitals 173, 174, 295 and 393 of the contested decision).
438 In the second place, the applicant itself acknowledges that those ‘comfort calls’ constitute a ‘reliable piece of evidence’ of its participation in the element relating to the FSC. Those ‘comfort calls’ were thus intended to ensure that competitors adopted the same measures and that discipline was maintained, as is apparent from recital 121 of the contested decision. By way of example, recital 316 of the contested decision, cited by the applicant, reads as follows: ‘In 3 calls in December 2003 [an employee of KLM] and [an employee of the applicant] discussed the upcoming increase of the FSC by [the applicant] and the position of KLM according to KLM’s FSC mechanism’.
439 Fifthly, as regards the purpose of the meetings that the Commission relies on in recital 167 of the contested decision, first of all, it should be noted that the fact that those meetings allegedly related exclusively to routes to third countries in respect of which the Commission had no jurisdiction, in view of the period (2001 to 2004) during which those meetings were held, is not such as to prevent them from being relied on by the Commission in order to establish the applicant’s participation in the element relating to the FSC, in accordance with the case-law referred to in paragraph 229 above. In any event, it should be noted that the applicant merely refers in general and unsubstantiated terms to its ‘long haul route structure’ in support of its claim. In addition, it is not apparent from the description given by Lufthansa of those meetings, on which recital 167 is based, that intra-EU or intra-EEA routes were excluded.
440 Next, contrary to what the applicant maintains, it is indeed apparent from Lufthansa’s description that the FSC was generally discussed during those meetings. Recital 167 of the contested decision, which refers to the statement made by Lufthansa in its application for immunity, reads as follows:
‘Each meeting would also generally include participants accusing each other of instances of price dumping or not consistently applying surcharges. The other side would generally counter such accusations with accusations of its own. Depending upon the circumstances, some of the carriers would follow-up on this information and take corrective action if applicable.’
441 It is true that those explanations appear in a subsection of that statement, entitled ‘Findings regarding competitor contacts on topics other than surcharges’. Nevertheless, that does not alter the clear and unambiguous meaning of Lufthansa’s statement reproduced in recital 167 of the contested decision. In addition, the heading is in keeping with the general content of that part of Lufthansa’s statements which do indeed refer, in essence, to exchanges on matters other than surcharges or not specifically related to surcharges.
442 Sixthly, as regards the significance of the evidence referred to in recital 387 of the contested decision, it is apparent therefrom, as the applicant admits, that the applicant was to participate in an informal meeting with Lufthansa, British Airways, Martinair and KLM in August 2004 in Amsterdam. The applicant does not dispute that that meeting was, inter alia, intended to cover the FSC. Yet it claims that its actual presence at the meeting has not been proved and that the Commission was therefore wrong to assert, in recitals 750 and 880 of the contested decision, that the applicant had participated in it.
443 In that regard, it should be noted that, in recital 750 of the contested decision, the Commission states, with reference to recital 387 thereof, that ‘in respect of the FSC, the contacts [of the applicant with its competitors] included in particular: … attending a meeting of “the European bosses” of [Lufthansa], [the applicant], [British Airways], [KLM] and [Martinair]’. Reference is also made to the applicant’s participation in that meeting in recital 880 of the contested decision.
444 Recital 387 of the contested decision states that ‘[the applicant’s] attendance [at that meeting] is not confirmed or denied’. However, Martinair’s statement, on which that finding is based, specifically states the carriers that were present at that meeting, without mentioning the presence of the applicant yet without saying anything to suggest that its presence could be excluded. Furthermore, contrary to what the Commission maintains, the fact that the applicant was to participate in that meeting does not make its participation in that meeting likely, in view of the fact that the evidence in the file describing the actual meeting does not mention the applicant.
445 It follows that the Commission was wrong to take the view, in recitals 750 and 880 of the contested decision, that the applicant had participated in the meeting in question.
446 It is nevertheless apparent from recital 387 of the contested decision that the applicant was to participate in an informal meeting with competing carriers and that the subject of that meeting was to be, in particular, the FSC. The fact that the carriers in question intended to discuss the subject of the FSC with the applicant is, in itself, an indication of the applicant’s participation in the element of the single and continuous infringement relating to the FSC (see, to that effect, judgment of 29 June 2012, GDF Suez v Commission, T‑370/09, EU:T:2012:333, paragraph 226).
447 Thus, notwithstanding the error made by the Commission in recitals 750 and 880 of the contested decision, the applicant is not justified in claiming that the contact referred to in recital 387 did not establish its participation in the element of the single and continuous infringement relating to the FSC.
448 Furthermore, it should be noted that the contested decision contains several other examples of contacts made by the applicant, during the same period, with the carriers present at the August 2004 meeting concerning the FSC, including both bilateral contacts (see recitals 373 and 374 of the contested decision), and multilateral contacts (see recitals 393 and 394 of the contested decision). Therefore, even if the evidence described in recital 387 of the contested decision were to be given less probative value on the ground that it does not establish the applicant’s actual participation in an anticompetitive meeting, the fact remains that the existence of anticompetitive contacts regarding the FSC between the carriers concerned, during that same period, is established on the basis of a larger body of evidence.
449 Seventhly, as regards the significance of the applicant’s statement referred to in recital 121 of the contested decision, it should be made clear from the outset that the applicant’s line of argument is directed against a statement supporting the anticompetitive nature of the element relating to the FSC, and not against the evidence of its own participation therein. Moreover, recital 121 is not included in the specific body of evidence relied on against the applicant (see recitals 750 to 752 of the contested decision).
450 That said, it should be noted that the applicant’s statement that ‘in 2005 there were constant fears that a major carrier would “break out” and charge lower FSC than the others’ shows that the objective pursued was to maintain common discipline as regards the FSC and implicitly reflects that compliance with that common discipline seemed to have been achieved before 2005. That description of the objective of the contacts relating to changes to the FSC rate is supported, over the entire infringement period, by a body of other evidence, cited in particular in recitals 121, 125, 127, 128 and 129 of the contested decision, the scope of which either has not been contested by the applicant or, as regards recital 127, has been contested unsuccessfully, as is apparent from paragraph 434 above. Accordingly, the applicant cannot criticise the Commission for having attributed excessive significance to its statement reproduced in recital 121 when determining the objective pursued by the contacts relating to the FSC.
451 In the light of all of the foregoing, the present complaint must be rejected.
(2) Proof of the applicant’s participation in the element relating to the SSC
452 The applicant claims that the evidence on which the Commission relies does not establish its participation in a worldwide organised system of collusion in relation to the SSC.
453 First, there is no evidence of the existence of high-level agreements among senior executives of the incriminated carriers at the time the SSC was implemented. The Commission’s argument is implicitly based on the existence of such agreements.
454 Secondly, the emails referencing low level contacts within the Syndicat des compagnies aériennes de fret en France (SYCAFF) and a group involving British Airways, Lufthansa, AF, the applicant, KLM and Swiss (BLACKS) are ambiguous.
455 Thirdly, the evidence relied on by the Commission establishes only that contacts took place at local level.
456 Fourthly, those pieces of evidence relate mainly to September and October 2001 and to a few months of 2004, thus leaving gaps which call into question the continuous nature of the infringement.
457 Fifthly, alleging, in essence, infringement of the principle of the protection of legitimate expectations, the applicant claims that the Commission contributed to the uncertainty in Hong Kong regarding the need for carriers to coordinate on the application of the SSC. In support of that argument, the applicant mentions a letter from the Commission’s Hong Kong office of 27 November 2003.
458 The Commission disputes the applicant’s arguments.
459 As a preliminary point, it should be noted that the applicant, in reply to questions posed in the context of measures of organisation of procedure of the Court, stated that the present complaint should be understood to be directed both against the finding of its participation in the single and continuous infringement, as regards the element concerning the SSC, and against the finding of the very existence thereof.
460 It should be noted that, in paragraph 99 of the application, the applicant merely claims that the evidence on which the Commission relies in relation to the SSC ‘does not indicate that Cargolux was involved’, referring to recital 753 of the contested decision. Furthermore, the evidence in question is included in the body of evidence specifically relied on by the Commission against the applicant. It is in fact only in the context of the third part of the present plea, in particular in paragraph 116 of the application, to which the applicant refers in its response submitted in the context of measures of organisation of procedure of the Court, that it claims that the Commission has failed to establish the existence of a single and continuous infringement as regards the element concerning the SSC. It is therefore only at that stage that the Court will examine whether that finding is incorrect.
461 In the present case, the Commission finds that the applicant participated in the element of the single and continuous infringement relating to the SSC on the basis of the following factors, set out in recital 753 of the contested decision:
‘In respect of the SSC contacts included: exchanges of information concerning the implementation of SSC by email [see recitals 594, 595 and 609 of the contested decision]; participation in multilateral meetings where the SSC was discussed involving numerous carriers, notably in Johannesburg, Nairobi and Cairo in October 2001 [see recitals 646, 649 and 650 of the contested decision] and in meetings of the BAR CSC and of the BAR CSC Executive Committee in Hong Kong [see recitals 618, 660, 665, 667, 668 and 669 of the contested decision]; participation in SSC discussions among members of SYCAFF [see recital 614 of the contested decision]; involvement, in the so called BLACKS initiative in Italy which included SSC discussions [see recital 640 of the contested decision]. Some evidence indicates further contacts concerning the SSC [see recital 664 of the contested decision].’
462 As regards the evidence constituting the body of evidence relied on against the applicant, the applicant contests first of all the anticompetitive nature of the contacts in SYCAFF (recital 614 of the contested decision) and BLACKS (recital 640 of the contested decision), claiming that they are ambiguous.
463 As regards recital 614 of the contested decision, it has already been found that it constituted direct evidence of the applicant’s participation in the single and continuous infringement as regards the element concerning the SSC (see paragraph 397 above). As regards recital 640 of the contested decision, the applicant is not justified in claiming that the phrase ‘streamline our surcharge policy’ is ambiguous when it clearly refers to the common strategy in this area of carriers that are members of BLACKS.
464 Nor is the applicant justified in denying that the contacts in Hong Kong were anticompetitive on the ground that the Commission’s local office, by a draft letter of 27 November 2003, ‘contributed to the uncertainty’ as to whether it was necessary for carriers to coordinate the application of the SSC. The letter in question, which remained a draft and was never sent as such to the CAD, cannot constitute precise, unconditional and consistent assurances originating from authorised and reliable sources such as to give rise to justified expectations on the part of the applicant (see, to that effect, judgment of 5 March 2019, Eesti Pagar, C‑349/17, EU:C:2019:172, paragraph 97).
465 Next, it must be noted that the applicant is mistaken when it contests, in essence, that the contacts relied on against it formed part of the element relating to the SSC of the single and continuous infringement, on the ground that there were no ‘high level agreements among senior executives at the time the SSC was implemented following the 9/11 terrorist attacks’ and that those contacts, in particular those described in recitals 594, 595 and 609 of the contested decision, were exclusively local.
466 The three contacts cited by the applicant provide support for, rather than undermine, the existence of the multi-level structure described by the Commission in the contested decision as regards the implementation of the surcharges (see paragraph 231 above). Accordingly, all those contacts relate to instructions from or communications with the head office. That is the case, for example, with the emails described in recitals 594 and 595 of the contested decision, both of which were sent on 28 September 2001 and asked the addressees, including the applicant, about the instructions from their respective head offices in relation to the introduction of the SSC.
467 Lastly, in so far as the applicant disputes the continuous nature of its participation in the element of the single and continuous infringement relating to the SSC, it must be observed that the contested decision reveals a ‘gap’ in the evidence relied on to establish the applicant’s participation between 26 November 2002 (recital 618 of the contested decision) and 14 January 2004 (recital 660 of the contested decision), and from 28 September 2004 (recital 640 of the contested decision) until the end of the single and continuous infringement, on 14 February 2006.
468 In the circumstances of the present case, such periods are sufficiently long for it to be necessary to ascertain whether the applicant’s participation in the element of the single and continuous infringement relating to the SSC was interrupted between 26 November 2002 and 14 January 2004, and ended on 28 September 2004 rather than on 14 February 2006.
469 In that regard, it should be noted that the fact that direct evidence of an undertaking’s participation in the infringement at issue during a specified period has not been produced does not preclude that participation from being regarded as established also during that period, provided that that finding is based on objective and consistent indicia (judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 27 and the case-law cited).
470 The fact that, in the case of a complex infringement, the undertaking concerned did not participate in one or more collusive contacts or did not express its agreement with the results of one of those contacts does not mean that that undertaking stopped its participation in the infringement at issue (judgment of 24 March 2011, Kaimer and Others v Commission, T‑379/06, not published, EU:T:2011:110, paragraph 66).
471 Nevertheless, public distancing constitutes an important fact capable of establishing that anticompetitive conduct has come to an end. Conversely, the absence of public distancing forms a factual situation on which the Commission can rely in order to prove that an undertaking’s anticompetitive conduct has continued. That is, however, only one factor amongst others to take into consideration with a view to establishing whether an undertaking has actually continued to participate in an infringement or has, on the contrary, ceased to do so. It is not sufficient to justify a finding of uninterrupted participation of the undertaking concerned where, over the course of a significant period of time, several collusive contacts took place in the absence of its representatives. The Commission is required to adduce other evidence in such a case (see, to that effect, judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraphs 23 and 28).
472 Such evidence may relate, inter alia, to the nature of the infringement at issue (see, to that effect, judgment of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, paragraph 237), the operation of the cartel at issue (see, to that effect, judgment of 25 October 2011, Aragonesas Industrias y Energía v Commission, T‑348/08, EU:T:2011:621, paragraphs 243 and 244), the conduct of the undertaking concerned on the relevant market (see, to that effect, judgments of 5 December 2006, Westfalen Gassen Nederland v Commission, T‑303/02, EU:T:2006:374, paragraph 139 and the case-law cited, and of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, paragraph 241), the inclusion of the conduct at issue in a single infringement consisting of several other elements or to the effects produced by that conduct (see, to that effect, judgment of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, paragraphs 242 and 245).
473 In the present case, first, it should be noted that the applicant has not effectively contested its participation in the element of that infringement relating to the FSC, as is apparent, in particular, from the examination of the first part of the fourth plea and the first part and the first complaint of the second part of the present plea. It has also failed to call into question that the elements relating to the FSC and the SSC should be included in one and the same infringement pursuing a single objective (see the examination of the first part of the fourth plea above and the third part of the present plea below). It has been established that the applicant’s participation in the FSC element continued until 14 February 2006, on the basis of ‘reliable evidence’, from, at the very least, 10 June 2005. Moreover, that participation is corroborated, before that date, by a significant amount of evidence and indicia of anticompetitive contacts, in particular in 2002 and 2003 (see, in particular, paragraphs 436 to 438 above).
474 Secondly, it is important to note, as the Commission rightly argues, that the implementation of the SSC required significantly less frequent contacts than the implementation of the FSC. Unlike the FSC, the SSC was not based on an index, with regular adjustments being required in accordance with changes in that index. That explains why, following its introduction at the end of 2001, there were only occasional contacts between carriers concerning its implementation (see recital 579 of the contested decision).
475 Thirdly, the applicant does not dispute that the effects of the coordination relating to the SSC continued during the period for which there is no evidence of contacts. The applicant does not claim, moreover, that it was unaware that the other incriminated carriers continued to coordinate on the SSC during that period.
476 Fourthly, the applicant has not established or even alleged that it publicly distanced itself from the coordination relating to the SSC during the periods for which there is no evidence of contacts. Nor does it establish that it had resumed fair and independent competitive conduct on the relevant market during that period.
477 In those circumstances, the Commission was entitled to infer from the evidence available to it that the applicant’s participation in the element of the single and continuous infringement relating to the SSC had continued, both between 26 November 2002 and 14 January 2004 and from 28 September 2004 until the end of the infringement.
478 In the light of all of the foregoing, the present complaint must be rejected.
(3) Proof of the applicant’s participation in the element relating to the refusal to pay commission
479 The applicant claims that the Commission ignored the specific legal context of the contacts in which it participated concerning the refusal to pay commission and thus failed to establish to the requisite standard that the conduct in question constituted restriction ‘by object’. Indeed, those contacts were a lawful and legitimate response on the carriers’ part to litigation brought by freight forwarders, to their threats of a boycott and to their concerted practices, the freight forwarders having attempted to establish an entitlement to a fixed percentage payment for surcharge collection.
480 Even if the contacts relating to the refusal to pay commission were to be considered as collusive, the Commission has failed to demonstrate that they formed part of a long-term worldwide cartel. The evidence relied on relates to bilateral contacts at local level and concerns, inter alia, facts which occurred in India in 2003 the relevance of which is unclear, and includes emails which were also sent to non-incriminated carriers.
481 The Commission disputes the applicant’s arguments.
482 The present complaint is based on two separate arguments, the first seeking to contest the anticompetitive nature of the contacts in which the applicant participated concerning the refusal to pay commission, and the second seeking, in the alternative, to contest the inclusion of those contacts in the single and continuous infringement.
483 In the first place, as regards the calling into question of the anticompetitive nature of the contacts at issue, it must be stated that this is based on two false premisses, one in law and the other in fact.
484 The applicant is mistaken in maintaining that the carriers’ discussions focused on whether the surcharges could give rise to the charging of commission.
485 It is indeed apparent from recitals 675 to 702 of the contested decision, including those specifically relied on against the applicant (see paragraph 493 below), that the carriers and freight forwarders had diverging legal interpretations regarding the issue of the payment of commission. However, the incriminated carriers did not simply define a common position on that issue and defend it in a coordinated manner before the relevant courts or promote it collectively to public authorities and other trade associations. On the contrary, the incriminated carriers acted in concert by agreeing – at a multilateral level – to refuse to negotiate the payment of commission with freight forwarders and to grant them discounts on the surcharges. Thus, in recital 695 of the contested decision, the Commission referred to an email of 19 May 2005, in which a regional manager of Swiss in Italy stated that ‘all [participants in a meeting held on 12 May 2005 had] confirmed that [they] will not accept any [FSC/SSC] remuneration’. In recital 696 of the contested decision, reference is made to an internal email of 14 July 2005 in which CPA stated that ‘everyone [who had participated in a meeting the day before, including the applicant] reconfirmed the firm intention not to accept any negotiation’ concerning the payment of commission. Similarly, in recital 700 of that decision, the Commission relied on an internal email in which an employee of the applicant informed its head office that a meeting was held ‘with all [carriers] operating at [Barcelona airport]’ and indicated that ‘it was a general opinion that we [should] not pay any [commission] on surcharges’.
486 It is also apparent from the contested decision that several carriers exchanged information – on a bilateral level – in order to ensure each other that they would continue to adhere to the refusal to pay commission, as they had previously agreed. By way of illustration, recital 688 of that decision describes a telephone conversation of 9 February 2006 during which Lufthansa asked AF whether its position on the refusal to pay commission remained unchanged.
487 From a legal standpoint, in so far as the applicant maintains that the refusal to pay commission constituted a legitimate response to the allegedly unlawful conduct of the freight forwarders, it must be borne in mind that an undertaking cannot rely on the conduct of other undertakings, even if it is unlawful or unfair, to justify an infringement of the competition rules (see, to that effect, judgments of 8 July 2004, Dalmine v Commission, T‑50/00, EU:T:2004:220, paragraph 333, and of 12 July 2018, LS Cable & System v Commission, T‑439/14, not published, EU:T:2018:451, paragraph 53) or to question its classification as a restriction of competition (see, to that effect, judgment of 7 February 2013, Slovenská sporiteľňa, C‑68/12, EU:C:2013:71, paragraphs 19 and 21).
488 It is for public authorities and not private undertakings or associations of undertakings to ensure compliance with statutory requirements (judgment of 7 February 2013, Slovenská sporiteľňa, C‑68/12, EU:C:2013:71, paragraph 20). Undertakings are not entitled to take the law into their own hands by substituting themselves for those authorities to penalise any infringements of EU competition law and by preventing, through measures adopted on their own initiative, competition within the internal market. That is particularly the case where there are legal means by which they may assert their rights before those authorities (see, to that effect, judgment of 12 December 1991, Hilti v Commission, T‑30/89, EU:T:1991:70, paragraphs 117 and 118).
489 In the present case, the applicant neither demonstrates nor even alleges that such legal means were missing.
490 It follows that the applicant cannot rely on the allegedly anticompetitive conduct of the freight forwarders in order to deny that the contacts concerning the refusal to pay commission in which it was involved were also anticompetitive.
491 Accordingly, and in the light of all of the foregoing, the applicant’s argument seeking to call into question the anticompetitive nature of the contacts at issue must be rejected.
492 In the second place, as regards the inclusion of those contacts in the single and continuous infringement described in the contested decision, none of the arguments put forward by the applicant in that regard is capable of succeeding.
493 In the present case, the Commission found that the applicant participated in the element of the single and continuous infringement relating to the refusal to pay commission on the basis of the following factors, set out in recital 754 of the contested decision:
‘Concerning the [refusal to pay commission] on surcharges to forwarders, contacts include: confirmation of mutual intention of carriers not to pay commission at multilateral meetings, for example, at the Hong Kong BAR CSC meeting on 11 July 2005 [see recital 503 of the contested decision]; meetings on 12 May 2005 at Lufthansa Cargo Italy [see recital 695 of the contested decision] and on 13 July 2005 in Milan [see recital 696 of the contested decision] and in other contacts with local carriers [see recital 698 of the contested decision]; a meeting on 5 July 2005 in Barcelona with all carriers operating at this airport [see recital 700 of the contested decision]; bilateral discussions with [KLM] at the Kelkheim meeting [see recital 523 of the contested decision]; participation in the BLACKS meetings in Italy where the participants agreed to reject the demand of the Italian forwarder association on commission surcharges [see recital 560 of the contested decision]; and information received as a follow up to the trilateral meeting between [KLM], [Lufthansa] and AF, notably on 6 June 2005 where besides FSC issues, the participants agreed that forwarders should continue not to receive commission on collected surcharges [see recitals 471 and 472 of the contested decision].’
494 First, the fact that some of the carriers mentioned in the contacts concerning the refusal to pay commission were not addressees of the contested decision, or that they were not found to have participated in that element of the single and continuous infringement, is irrelevant for the reasons set out in paragraphs 366 to 369 above.
495 Secondly, the applicant has failed to substantiate the claim that the contacts relied on by the Commission were purely local. In the application, the applicant relies on contacts that do not concern the element relating to the refusal to pay commission, as it admitted, moreover, at the hearing.
496 In any event, the contacts relied on by the Commission in order to establish the applicant’s participation in the element relating to the refusal to pay commission, which must be assessed as a whole, reflect the multi-level structure described by the Commission in the contested decision as regards the implementation of the cartel at issue (see paragraph 231 above). The refusal to pay commission constituted in that regard an additional incentive for the carriers to continue with the cartel at issue coordination relating to surcharges (see recital 109 of the contested decision).
497 Thus, a number of the contacts relating to the refusal to pay commission involved employees of the head offices of the incriminated carriers or referred to communications between local staff and head offices (recitals 471, 472, 523 and 700). Moreover, several of those contacts dealt with both the matter of coordinating surcharges and the refusal to pay commission (recitals 471, 472, 523 and 560). The applicant (i) has not disputed that the contacts relating to the FSC in which it participated were part of a cartel that was not purely local and (ii) has failed to establish that, as regards the SSC, those contacts remained purely local (see paragraphs 465 and 466 above). In view of the complementarity between the elements relating to surcharges and the element relating to the refusal to pay commission, which has been unsuccessfully contested by the applicant (see paragraphs 329 above and 509 below), it can reasonably be inferred that the contacts relating to the refusal to pay commission in which it participated had a geographical scope that was similar, or close to, those relating to surcharges.
498 Thirdly, it must be noted that the events that occurred in India in 2003, referred to in recital 701 of the contested decision, are not relied on against the applicant in the contested decision. Consequently, the line of argument relating to them must be rejected.
499 The present complaint and, consequently, the second part in its entirety must therefore be rejected.
(d) The third part, alleging that the Commission used the concept of a single and continuous infringement as a substitute for proof
500 The applicant maintains that the Commission has misused the concept of a single and continuous infringement by grouping together a disparate collection of contacts, telephone calls and meetings between numerous incriminated and non-incriminated carriers, some of which were entirely lawful, and presenting the lot as a compelling body of evidence. However, the Commission has failed to adduce evidence of interdependence or complementarity between the forms of conduct and the random and unrelated arrangements on which it relies. Equally, the Commission has failed to adduce explicit evidence that it was aware of the infringing conduct of the other incriminated carriers.
501 First, the Commission relied on various facts and matters that cannot be taken to constitute evidence of an anticompetitive aim. The Commission refers to facts relating to third-country routes, in respect of which it had no jurisdiction, and to the exchange of public information, which was perfectly legal. Secondly, the evidence relating to the SSC is limited to local level contacts that took place mainly in September or October 2001 and in a few months of 2004. That evidence contains significant temporal gaps such as to call into question the continuous nature of the infringement. Thirdly, the Commission failed to take account of the proper context of the discussions concerning the refusal to pay commission. It has also failed to prove that those discussions, even if they were collusive, were complementary to the FSC and SSC elements. Fourthly, there is no evidence that the applicant knew or should have known either that its individual ‘comfort calls’ with Lufthansa, KLM and Martinair might be part of an industry-wide scheme or that the three meetings in which it took part in June, July and October 2005 could have involved a network wider than Lufthansa, AF and KLM. The general statements on which the Commission relies heavily in this connection do not acquit it of the burden of proof. The applicant states that it had no contact with Air Canada, Lan Cargo or SAS other than at public meetings of the CSC of the BAR in Hong Kong.
502 The Commission disputes the applicant’s arguments.
503 As a preliminary point, it should be noted that the essential aspects of the applicant’s arguments in the present part concern the existence of the single and continuous infringement and not its participation therein. The only exception is the complaint alleging a failure to establish that it was aware of all the other offending conduct planned or put into effect by the other incriminated carriers in the pursuit of the single anticompetitive objective.
504 As regards the latter complaint, it should be noted that the applicant, by referring to ‘comfort calls’ with Lufthansa, KLM and Martinair and to three meetings in which it participated between June and October 2005, relies in support of that complaint on only a fraction of approximately 50 contacts relied on against the applicant by the Commission in order to establish its participation in the element relating to the FSC. However, it is apparent from those approximately 50 contacts relied on by the Commission that the number of the incriminated carriers with which it was in contact was not, contrary to what the applicant maintains, limited, but actually included the vast majority of the incriminated carriers, as is illustrated, inter alia, by its participation in several multilateral meetings concerning the FSC (see paragraph 437 above). Accordingly, that complaint, which is insufficiently substantiated, must be rejected as unfounded.
505 Having noted that, it must also be held that the applicant’s line of argument in the context of the present part of the plea is largely confined to reproducing points that have already been examined and rejected by the Court.
506 Thus, the Court has already concluded, following the examination of the first plea and of the first two parts of the fifth plea, that the Commission was justified in relying on contacts relating to routes to third countries, including before the date on which the Commission acquired jurisdiction in that regard, to create an overall picture of the cartel at issue and support other items of evidence. Similarly, the Commission was justified in relying on the ‘public announcements’ made to other carriers (see paragraphs 349 to 352 above), on the alleged ‘intelligence gathering of market information based on publicly available information’ (see paragraphs 393 to 405 above), and on the participation in trade association meetings in which non-incriminated carriers also participated (see paragraph 406 above) for the purpose of establishing the existence of the single and continuous infringement. Furthermore, since the Commission did not err in finding that the applicant’s participation in the element relating to the SSC was continuous until 14 February 2006 (see paragraphs 467 to 477 above), the applicant cannot effectively contest the continuity of that element of the single and continuous infringement in the present part. Lastly, the ‘proper legal context’ of the contacts relating to the refusal to pay commission is not such as to call into question the anticompetitive nature of those contacts (see paragraphs 487 to 490 above).
507 Thus, in the context of the present part of the plea, it is still necessary to examine the complaint alleging that there are no links of complementarity between the element relating to the refusal to pay commission and the elements relating to the FSC and the SSC.
508 At the outset, it should be observed that, as recalled in paragraph 326 above, the Commission is not required to determine, for the purposes of characterising various instances of conduct as a single and continuous infringement, whether such links are present. Even if it were to be established, a failure to establish such links between the element relating to the refusal to pay commission and the elements relating to the FSC and the SSC would not therefore be capable, in itself, of rendering the contested decision unlawful.
509 In any event, the applicant’s reliance on the relatively late start of the element relating to the refusal to pay commission as compared to the other elements is not such as to call into question the existence of links of complementarity between them, as established by the Commission in recital 879 of the contested decision. Those links stem in particular from the fact that the coordinated refusal to pay commission on surcharges ‘[had] ensured that surcharges were not subject to competition through the negotiation of commission (in fact discounts on the surcharges) with customers’ (recital 879 of the contested decision), which is clearly intended to reinforce the objective of coordinating prices by protecting the FSC and the SSC from the effects of maintaining residual competition on the market. The relative delay in coordinating the refusal to pay commission does not detract from its contribution, through its interaction with the other elements of the single and continuous infringement, to the attainment of the single objective pursued by the incriminated carriers.
510 The present complaint must therefore be rejected and, accordingly, it is necessary to reject the third part of the plea in its entirety.
(e) The fourth part, alleging that the Commission failed to establish the ‘worldwide’ nature of the single and continuous infringement
511 The applicant complains that the Commission failed to adduce the necessary evidence to support its allegation of the ‘worldwide’ nature of the single and continuous infringement. The Commission did not prove any grand worldwide scheme or show any connection to link within such a scheme the disparate collection of actions taken by various participants around the globe. It was wrong to assume that the various instances of collusive conduct were all part of a worldwide cartel because they occurred more or less simultaneously in different locations.
512 In the first place, the fact, invoked in recital 888 of the contested decision, that the contacts at issue concerned surcharges, took place ‘in parallel’ and involved largely the same carriers is irrelevant to establishing the geographic scope of the cartel. Most of the contacts at issue referred to in that recital were general discussions that made no reference to a specific jurisdiction or to worldwide elements.
513 In the second place, the Commission is not justified in relying, in paragraph 889 of the contested decision, on the fact that surcharges are measures of general application that are not route specific. That is factually incorrect, inasmuch as the surcharges were not applied uniformly. The statement is also insufficient from a legal viewpoint to establish worldwide coordination.
514 In the third place, the Commission cannot, as it does in recital 890 of the contested decision, infer that the cartel at issue was worldwide from the absence of insurmountable barriers to the provision of airfreight services on routes on which the incriminated carriers had never operated or could not legally operate. The Commission thus ignores the applicable regulatory framework. Furthermore, the theoretical possibility of providing services on the routes in question does not establish the worldwide geographic scope of the cartel at issue.
515 The Commission disputes the applicant’s arguments.
516 It must be observed at the outset that, contrary to the applicant’s claims, the Commission did not conclude, in the operative part of the contested decision, that there was a worldwide infringement (see paragraphs 270 to 272 above).
517 That said, it should be noted that the Commission stated, in paragraph 889 of the contested decision, that the surcharges were ‘measures of general application’ that ‘were intended to be applied on all routes, on a worldwide basis’, and that the same was true of the refusal to pay commission, which was equally ‘general in nature’. Those considerations are based on items of evidence which must be regarded as being all the more numerous since it is normal for the activities which anticompetitive agreements entail to take place clandestinely, for meetings to be held in secret, and for the associated documentation to be reduced to a minimum (see judgment of 16 February 2017, H&R ChemPharm v Commission, C‑95/15 P, not published, EU:C:2017:125, paragraph 39 and the case-law cited).
518 Thus, as regards the surcharges, the Commission gathered various items of evidence, several of which are cited by way of example in footnote 1323 to the contested decision.
519 As regards, on the one hand, the FSC, it should be noted in particular that recital 140 of the contested decision refers to an internal Swiss email in which it is stated that AF ‘will levy worldwide a [FSC] of EUR 0.10/ USD 0.10 Kg’, that KLM ‘will exactly do the same’ and that Lufthansa ‘is going into the same direction but not confirmed at this minute’. Furthermore, in recital 162 of the contested decision, reference is made to an exchange of emails between Lufthansa and Japan Airlines of 27 September 2000 in which it is stated that Lufthansa Cargo intended to apply a certain amount of FSC ‘worldwide’, while, in recital 210 to that decision, reference is made to Martinair’s leniency statement, according to which Martinair had contacts with a number of carriers on the implementation of a worldwide FSC.
520 Similarly, footnote 1323 to the contested decision refers to announcements of increases or decreases in the FSC or the SSC with reference to a worldwide application of those surcharges, which were ‘not limited to a specific route’.
521 As regards, on the other hand, the SSC, it should be noted that, in recital 608 of the contested decision, the Commission referred to an email in which British Airways explained to Lufthansa that it wished to introduce an ‘exceptional handling fee’ worldwide. Moreover, in recital 666 of that decision, the Commission referred to the minutes of a meeting of 30 March 2004 of the Executive Committee of the CSC of the BAR in Hong Kong. It is apparent from those minutes that the amount of the SSC from Hong Kong was based on the ‘global benchmark’.
522 As regards the refusal to pay commission, it is true that the Commission did not, in footnote 1323 to the contested decision, give any specific examples of evidence to substantiate that it was applied ‘on all routes, on a worldwide basis’.
523 However, first, it should be noted that, since the surcharges were generally applicable ‘on all routes, on a worldwide basis’, it was likely that the same applied to the refusal to pay commission. In recital 879 of the contested decision, the Commission found that the refusal to pay commission and the other two elements of the single and continuous infringement were complementary in so far as they had ‘ensured that surcharges were not subject to competition through the negotiation of commission (in fact discounts on the surcharges) with customers’.
524 Secondly, it is important to note that the Commission has, elsewhere than in footnote 1323 to the contested decision, referred to evidence substantiating the application of the refusal to pay commission ‘on all routes, on a worldwide basis’. Thus, in recital 679 of the contested decision, the Commission referred to an internal email concerning the refusal to pay commission in which Swiss’s freight manager asked its regional directors to ‘participate wherever relevant in local BAR meetings’. Similarly, in recital 683 of the contested decision, the Commission mentions an internal memorandum addressed to CPA freight sales managers stating that ‘as long as local conditions allow C[PA] should adopt a common approach and response to the issue [of requests for commission on surcharges]’ and ‘should therefore consider following any rejection of such request or claim for commission and other related actions that may be coordinated by your local [carrier] associations’.
525 The Commission also adduced evidence that such coordination had taken place in many countries around the world, including Hong Kong (recital 503 of the contested decision), Switzerland (recital 692 of that decision), Italy (recitals 694 to 698 of that decision), France (recital 699 of that decision), Spain (recital 700 of that decision), India (recital 701 of that decision) and the United States (recital 702 of that decision).
526 Furthermore, the Commission described, in the contested decision, the organisation of the cartel as a multi-level structure, at a central and local level, for the implementation of the surcharges (see paragraphs 230 and 231 above). That finding is supported, in particular, by a number of contacts relied on against the applicant which were found, in paragraphs 231 and 416 above, to, first, involve employees of the head offices of the incriminated carriers, refer to instructions from or communications with such employees and, secondly, reflect at local level, announcements made or decisions taken previously at central level or which were at least contemporaneous with discussions between the head offices or decisions taken at head office level concerning surcharges.
527 In those circumstances, the applicant is not justified in claiming, a fortiori by means of general and unsubstantiated assertions, that the Commission did not demonstrate the worldwide nature of the cartel at issue.
528 None of the other arguments put forward by the applicant is capable of calling into question that conclusion.
529 First, the points set out in recital 888 of the contested decision must be read in the light of their purpose, which was to respond to the objections made during the administrative procedure by some of the incriminated carriers as to the relevance for the purpose of establishing the existence of the single and continuous infringement or of the ‘worldwide cartel’ of the contacts concerning routes on which the incriminated carriers did not operate and could not directly operate, as is apparent from recitals 112 and 885 to 887 of the contested decision.
530 Secondly, the Commission stated, in footnote 1323 to the contested decision, that the implementation of the surcharges was carried out within the framework of a ‘multi-level structure’ and that the rate of the surcharges varied and was discussed separately ‘due to the local market conditions or regulations’. It follows that the Commission did not intend to assert, contrary to what the applicant suggests, that the surcharge rates were applied uniformly on all routes worldwide.
531 Thirdly, as regards the finding in recital 890 of the contested decision that there were no insurmountable barriers to the provision of airfreight services on routes that the incriminated carriers never operated or could not legally operate, it must be noted that those arguments are not essential to the finding of the worldwide scale of the cartel at issue. The evidence taken into account in paragraphs 517 to 527 above is sufficient to justify that finding. The applicant’s argument in that regard must therefore be rejected as inoperative.
532 In any event, it must also be rejected as unfounded. In that regard it should be noted that the applicant does not call into question, in its written pleadings, the applicability of the ‘no insurmountable barriers’ test for the purposes of assessing the existence of potential competition. Nor does the applicant allege an error of law in the application of that test.
533 It must be observed that, in challenging the finding that there were no such barriers, the applicant merely makes general and unsubstantiated assertions. It thus fails to adduce any evidence in support of its claim that the Commission disregarded ‘the regulatory framework governing the aviation sector’.
534 Nor does it explain why it considers that the agreements described in recital 890 of the contested decision were not such as to enable carriers to ‘overcome any legal or technical barriers to the provision of … freight services on routes on which [they] did not operate or which [they] could not legally have operated’. It is apparent from recitals 16, 68 and 72 of the contested decision that the carriers were able to offer freight services beyond the routes that they operated directly by entering into such agreements with other carriers, bearing in mind that the lesser importance of the time factor in the freight sector enables direct routes to be replaced by indirect routes. The prevalence, in practice, of that type of agreement is evidenced, in the contested decision, by numerous contacts (see recitals 178, 192, 205, 232, 244, 391, 632 and 768).
535 The applicant itself, in its reply to the Statement of Objections, acknowledges that fact when stating:
‘there are a broad variety of contractual formulas in the [freight] industry that enable reciprocal trading of capacity among carriers in order to allow them to serve additional routes. … They are of particular importance to [the applicant]- as the company has comparatively few traffic rights of its own, it depends to a larger extent than other airlines on cooperative arrangements.’
536 In the light of the foregoing, the present part of the plea must be rejected and, accordingly, the fifth plea must be rejected in its entirety.
8. The seventh plea in law, alleging errors in the calculation of the amount of the fine
537 The applicant claims that the amount of the fine imposed on it results from an incorrect application of the 2006 Guidelines. The applicant presents this plea as falling within the ‘review of the fine pursuant to the unlimited jurisdiction of the court’. However, in support of the present plea, the applicant relies on complaints and arguments that seek, in essence, to call into question the legality of the Commission’s assessments at the stage of calculating the amount of the fine. Accordingly, the present plea not only seeks to support its claims for amendment of the amount of the fine imposed on the applicant (see paragraphs 616 and 617 above), but also seeks to support its claim for amendment of the amount of the fine.
538 The present plea is based, in essence, on five parts, alleging, first, an error in the calculation of the value of sales, secondly, errors in the assessment of the gravity of the single and continuous infringement, thirdly, an error in the calculation of the duration of the applicant’s participation in the infringement, fourthly, misapplication of the ‘additional amount’ and, fifthly, a failure on the Commission’s part to take mitigating circumstances into account. The applicant also makes certain observations about the application of the ceiling of 10% of turnover.
(a) The first part, alleging an error in the calculation of the value of sales
539 The applicant claims that the Commission infringed point 13 of the 2006 Guidelines by taking into account the applicant’s turnover from inbound services when determining the value of sales. According to the applicant, inbound services fall outside the territorial scope of the Commission’s jurisdiction.
540 The applicant adds that the 50% reduction of the basic amount in recital 1241 of the contested decision is, as a result, arbitrary, fails to achieve its intended purpose and is contrary to the principle that penalties must be specific to the offender and the offence.
541 The Commission disputes the applicant’s arguments.
542 It must be observed that the present part of the plea is based on the premiss that the Commission did not have jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes. It is clear from paragraphs 80 to 183 above, that that premiss is incorrect.
543 The present part of the plea must therefore be rejected.
(b) The second part, alleging errors in the assessment of the gravity of the single and continuous infringement
544 The applicant claims that the Commission failed to carry out a proper individualised assessment of the gravity of the single and continuous infringement and that, consequently, the proportion of sales taken (16%) is excessive and unreasonable.
545 In the first place, the applicant argues that the Commission erred in its assessment of the nature of the single and continuous infringement. First of all, the Commission should have examined the anticompetitive effects of the infringement in order to determine its gravity and it therefore erred in dismissing as immaterial the fact that the cartel did not relate to the total price of freight services.
546 Next, the single and continuous infringement, which, leaving aside June, July and October 2005, amounted to no more than making ‘comfort calls’, pales into insignificance when compared to organised and hard-core cartels that the Commission has penalised in other decisions. First, the incriminated carriers never actually agreed on the principle of introducing a surcharge or on its mechanism. Nor did they rig the index to fix the surcharge. The rate of increase or decrease of the surcharge was determined unilaterally by the Lufthansa index and was then taken up by the other incriminated carriers without any coordination or agreement among them. Secondly, the FSC was not intended to achieve supra-competitive prices, but followed movements in the index and went up as well as down in line with fluctuations in fuel prices. In addition, the FSC never covered the complete additional cost of fuel.
547 Lastly, the applicant alleges that the Commission failed to take into account the individual contributions of the various incriminated carriers to the cartel and the extent of their involvement. However, given the applicant’s negligible market share on intra-EEA routes and its non-existent turnover on EU-Switzerland routes, the attribution to it of some responsibility for the single and continuous infringement in so far as concerns those routes is dependent on nothing more than a technicality. In addition, there is nothing to support the inference that it was involved in a long-lasting organised system of collusion on the SSC or on the refusal to pay commission.
548 In the second place, the applicant argues that it is difficult to see how the incriminated carriers could ‘have had any adverse impact at all on price’. The single and continuous infringement was limited to surcharges and the combined market share of the incriminated carriers was no more than 34%.
549 In the third place, the applicant maintains that the Commission described the geographic scope of the cartel as worldwide merely to inflate the true nature of the single and continuous infringement. Indeed, the Commission has failed to establish a worldwide cartel. The only sense in which the cartel at issue can be said to be ‘worldwide’ is that the incriminated carriers fly long-distance routes.
550 In the fourth place, the applicant complains that the Commission failed to adduce any specific and credible evidence indicating with reasonable probability that the single and continuous infringement had an impact on the freight market. In recital 1211 of the contested decision, the Commission merely stated that the agreements which it concluded were ‘in general implemented’, without in any way attempting to assess their actual or likely impact on the market. However, if the context of the agreements had been taken into account, that would have shown that they were extremely unlikely to have the effect of increasing prices indirectly in the freight market or to have an adverse effect on consumers.
551 The Commission disputes the applicant’s arguments.
552 Under Article 23(3) of Regulation No 1/2003, in fixing the amount of the fine, regard is to be had inter alia to the gravity of the infringement.
553 Points 19 to 23 of the 2006 Guidelines read as follows:
‘19. The basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement.
20. The assessment of gravity will be made on a case-by-case basis for all types of infringement, taking account of all the relevant circumstances of the case.
21. As a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales.
22. In order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of that scale, the Commission will have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented.
23. Horizontal price-fixing, market-sharing and output-limitation agreements, which are usually secret, are, by their very nature, among the most harmful restrictions of competition. As a matter of policy, they will be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale.’
554 According to the case-law, a horizontal agreement by which the undertakings concerned agree not on the total price but on one element thereof, constitutes a horizontal price-fixing agreement, within the meaning of point 23 of the 2006 Guidelines and is therefore among the most harmful restrictions of competition (see, to that effect, judgment of 29 February 2016, UTi Worldwide and Others v Commission, T‑264/12, not published, EU:T:2016:112, paragraphs 277 and 278).
555 It follows that, as the Commission pointed out in recital 1208 of the contested decision, such an agreement generally merits a gravity factor at the higher end of the scale of 0 to 30% referred to in point 21 of the 2006 Guidelines.
556 According to the case-law, a gravity factor significantly lower than the upper limit of that scale, is highly favourable to an undertaking which is party to such an agreement (see, to that effect, judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 125) and may even be warranted in view of the very nature of the infringement (see judgment of 26 September 2018, Philips and Philips France v Commission, C‑98/17 P, not published, EU:C:2018:774, paragraph 103 and the case-law cited).
557 In recital 1199 of the contested decision, the Commission specifically considered that the ‘agreements and/or concerted practices to which [the contested decision] relates concerned the fixing of various elements of the price’.
558 The applicant’s arguments to the effect that the incriminated carriers never actually agreed on the principle of introducing a surcharge, or on its mechanism, nor manipulated the index to fix the surcharge, have no bearing on that assessment.
559 The Commission was thus entitled, in recitals 1199, 1200 and 1208 of the contested decision, to characterise the conduct at issue as a horizontal price-fixing agreement or practice, even though it ‘did not cover the entire price for the services in question’.
560 For the same reasons, the Commission was right not to take account, for the purposes of characterising the conduct at issue as a horizontal price-fixing agreement or practice, of the fact that the FSC allegedly did not cover all fuel costs and could decrease or increase since it followed the fluctuation of fuel prices.
561 The Commission was therefore entitled to conclude, in recital 1208 of the contested decision, that the agreements and practices at issue were among the most harmful restrictions of competition and, accordingly, merited a gravity factor ‘at the higher end of the scale’.
562 The gravity factor of 16% which the Commission adopted in recital 1212 of the contested decision, which was significantly lower than the upper limit of the scale referred to in point 21 of the 2006 Guidelines, could therefore have been warranted in view of the very nature of the single and continuous infringement.
563 However, it must be observed that, as is apparent from recitals 1209 to 1212 of the contested decision, the Commission did not rely solely on the nature of the single and continuous infringement in order to set the gravity factor at 16%. The Commission thus referred in that decision to the combined market shares of the incriminated carriers worldwide and on intra-EEA and EEA-third country routes (recital 1209), to the geographic scope of the cartel at issue (recital 1210) and to the implementation of the agreements and practices at issue (recital 1211).
564 The applicant disputes the merits of each of those three factors.
565 In the first place, as regards the worldwide nature of the cartel at issue, it should be noted that the applicant merely makes reference to the fourth part of its fifth plea. As is apparent from paragraph 536 above, that part is unfounded. This argument must therefore be rejected.
566 In the second place, as regards the combined market shares of the incriminated carriers referred to in recital 1209 of the contested decision, it is sufficient to observe that the applicant has failed to explain why a worldwide market share of 34% (and a market share at least as high on intra-EEA and EEA-third country routes) would, in the light of the circumstances of the case and the characteristics of the cartel at issue, have been such as to minimise the impact of the single and continuous infringement to such an extent that the Commission should not have set the gravity factor at 16%, that is to say, at a level significantly lower than the upper limit of the scale referred to in paragraph 21 of the 2006 Guidelines. This argument must therefore be rejected.
567 In the third place, as regards the factor relating to the implementation of the agreements and practices at issue referred to in recital 1211 of the contested decision, it must be recalled that there is a difference between the criterion of whether or not an infringement has been implemented and the criterion of its actual impact on the market (judgment of 14 May 2014, Donau Chemie v Commission, T‑406/09, EU:T:2014:254, paragraph 69).
568 In the present case, the applicant merely complains that the Commission, in recital 1211 of the contested decision, stated that the agreements concluded by the applicant were ‘in general implemented’, without assessing their actual or likely impact on the market. The applicant’s argument is therefore based on confusion between matters relating to the implementation of the agreements and practices at issue and their actual impact on the market. Accordingly, it must be rejected.
569 In those circumstances, the applicant cannot maintain that a gravity multiplier of 16% was unlawful.
570 None of the other arguments put forward by the applicant is capable of calling into question that conclusion.
571 In the first place, as regards the allegedly minor or non-existent impact of the single and continuous infringement on the market, it must be borne in mind that the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3) provided that, in assessing the criterion of the infringement’s gravity, account had be taken of, inter alia, its actual impact on the market, where this could be measured.
572 However, that requirement no longer appears in the 2006 Guidelines, which are applicable in the present case. Accordingly, those guidelines do not require the Commission to take into consideration the actual impact of the infringement on the market in order to determine the percentage of the value of sales used for gravity in accordance with points 19 to 24 of those guidelines (see, to that effect, judgment of 16 June 2015, FSL Holdings and Others v Commission, T‑655/11, EU:T:2015:383, paragraph 539).
573 Nor does the case-law require it to do so, at least with regard to a restriction of competition ‘by object’.
574 The gravity of an infringement of competition rules must be determined by reference to numerous factors. Those factors include, in particular, the particular circumstances of the case, its context and the deterrent effect of fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up (order of 25 March 1996, SPO and Others v Commission, C‑137/95 P, EU:C:1996:130, paragraph 54, and judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 241).
575 The effects on the market may indeed be taken into account amongst those factors, but they are crucial only when one is dealing with agreements, decisions or concerted practices which do not directly have as their object the prevention, restriction or distortion of competition and which are not therefore liable to fall within the scope of application of Article 101 TFEU except as a result of their actual effects (judgment of 12 December 2018, Servier and Others v Commission, T‑691/14, EU:T:2018:922, paragraph 1809).
576 If it were otherwise, the Commission, at the stage of calculating the amount of the fine, would be under an obligation to which, according to settled case-law, it is not subject for the purposes of applying Article 101 TFEU where the infringement in question has an anticompetitive object (see judgment of 3 September 2009, Prym and Prym Consumer v Commission, C‑534/07 P, EU:C:2009:505, paragraph 64 and the case-law cited).
577 In recital 903 of the contested decision, the Commission classified the conduct at issue as a restriction of competition ‘by object’. It was therefore not required to take into consideration the actual impact of the single and continuous infringement on the market.
578 The fact remains that, if the Commission considers it appropriate, for the purposes of calculating the fine, to take account of the actual impact of the infringement on the market, it cannot rely on a mere presumption, but must provide specific, credible and adequate evidence with which to assess what actual influence the infringement may have had on competition in that market (judgment of 3 September 2009, Prym and Prym Consumer v Commission, C‑534/07 P, EU:C:2009:505, paragraph 82).
579 Similarly, although the Commission is not required, for the purpose of setting fines, to establish that the infringement in question conferred an unlawful advantage on the undertakings concerned, or to take into consideration, where applicable, the absence of such an advantage, the assessment of the unlawful gains from the infringement may be relevant if the Commission bases itself precisely on such gains for the purpose of setting the gravity factor (see, to that effect, judgment of 15 March 2000, Cimenteries CBR and Others v Commission, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, EU:T:2000:77, paragraphs 4881 and 4882).
580 In recital 1199 of the contested decision, when setting the gravity factor, the Commission found that the agreements and practices at issue had ‘operated to the benefit of the [incriminated carriers] and to the detriment of their customers and ultimately the general public’. Yet the Commission did not rely on any evidence in support of that finding.
581 It should be observed, however, that the finding at issue is not an independent ground that the Commission relied on in order to assess the gravity of the single and continuous infringement, but one of a number of considerations which it took into account in assessing the nature of that infringement in recitals 1199 to 1208 of the contested decision. That consideration does not constitute the necessary basis for the conclusion that the infringement concerned the fixing of elements of the price of freight services and was, therefore, such as to justify a gravity factor at the lower end of the ‘scale’ referred to in point 23 of the 2006 Guidelines for the most serious restrictions of competition. Consequently, the present argument is not such as to call into question the assessment of the nature of the infringement in question set out in the contested decision and, accordingly, since the applicants have failed to establish that the gravity factor was not justified in the light of the other factors taken into account in the contested decision (see paragraphs 563 and 568 above), the present argument must be rejected.
582 In the second place, as regards the applicant’s reference to the treatment of organised and hard-core cartels in the Commission’s decision-making practice, it is sufficient to recall that that practice does not itself serve as a legal framework for fines imposed in competition matters, since that framework is defined solely in Regulation No 1/2003 and the 2006 Guidelines (see judgment of 9 September 2011, Alliance One International v Commission, T‑25/06, EU:T:2011:442, paragraph 242 and the case-law cited), and that, in any event, it has not been established that the facts of the cases giving rise to those decisions, such as markets, products, the countries, the undertakings and periods concerned, are comparable to those of the present case (see, to that effect, judgment of 29 June 2012, E.ON Ruhrgas and E.ON v Commission, T‑360/09, EU:T:2012:332, paragraph 262 and the case-law cited).
583 In the third place, as regards the Commission’s alleged failure to take account of the individual contribution of each of the incriminated carriers for the purposes of setting the gravity factor, it should be borne in mind that the factors which may be taken into account in assessing the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the profit which they were able to derive from the cartel, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union (see judgment of 26 January 2017, Roca Sanitario v Commission, C‑636/13 P, EU:C:2017:56, paragraph 49 and the case-law cited).
584 It should be borne in mind, however, that the taking into account of differences between the conduct of the various undertakings that participated in the same infringement need not necessarily occur when setting the gravity factor, but may occur at another stage in the setting of the fine, such as when the basic amount of the fine is adjusted in the light of mitigating or aggravating circumstances under points 28 and 29 of the 2006 Guidelines (see, to that effect, judgment of 26 January 2017, Roca v Commission, C‑638/13 P, EU:C:2017:53, paragraph 67 and the case-law cited).
585 In the context of determining the gravity factor, in recital 1208 of the contested decision, the Commission stated that it would take into account the ‘fact that certain carriers may have played a minor … role … as a possible mitigating circumstance’. It thus found, in recitals 1246 to 1258 of the contested decision, that the participation of certain incriminated carriers in the single and continuous infringement was limited in scope and, consequently, it granted them a 10% reduction in the basic amount of the fine on account of mitigating circumstances. The applicant was not one of those carriers.
586 It follows that the Commission did not err in not taking into account the applicant’s allegedly limited participation in the single and continuous infringement also at the stage of setting the gravity factor.
587 The present part of the plea must therefore be rejected.
(c) The third part, alleging errors in the calculation of the duration of the applicant’s participation in the infringement
588 The applicant takes issue with the Commission for not limiting the duration of the infringement to its involvement in restrictive practices relating to the FSC that began in 2003.
589 The Commission disputes the applicant’s arguments.
590 It must be observed that the present part of the plea is based on the premiss that the applicant’s participation in the element of the single and continuous infringement relating to the STC did not begin before 2003. As is apparent from the examination of the second part of the fifth plea, that premiss is incorrect and the present part of the plea must be rejected.
(d) The fourth part, alleging incorrect application of an ‘additional amount’ of 16%
591 The applicant claims that the application of an additional amount of 16% is unwarranted. It alleges that the application of that additional amount is the result of the classification of the infringement as the type of arrangement that falls toward the higher end of the scale. That classification is, however, unwarranted, given the absence of harm to consumers and the limited nature of the infringement and its negligible impact on the market.
592 The Commission disputes the applicant’s arguments.
593 Point 25 of the 2006 Guidelines provides that irrespective of the duration of the undertaking’s participation in the infringement, the Commission will include in the basic amount a sum of between 15 and 25% of the value of sales in order to deter undertakings from even entering into horizontal price-fixing, market-sharing and output limitation agreements. That point states that, for the purpose of deciding the proportion of the value of sales to be considered in a given case, the Commission will have regard to a number of factors, in particular those referred in point 22 of the 2006 Guidelines. Those factors are the same which the Commission takes into account for the purpose of setting the gravity factor and include the nature of the infringement, the combined market share of all the parties concerned, the geographic scope of the infringement and whether or not the infringement has been implemented.
594 The Courts of the European Union have inferred from this that, even if the Commission does not set out a specific statement of reasons as regards the proportion of the value of sales used as the additional amount, the mere reference to the analysis of the factors used in order to assess the gravity of the infringement suffices in that respect (judgment of 15 July 2015, SLM and Ori Martin v Commission, T‑389/10 and T‑419/10, EU:T:2015:513, paragraph 264).
595 In recital 1219 of the contested decision, the Commission found that the ‘percentage to be applied for the additional amount should be 16%’ given the ‘specific circumstances of the case’ and the criteria used to determine the gravity factor.
596 The arguments put forward by the applicant with regard to the additional amount are indissociable from those it raised with regard to the gravity factor, which the Court rejected in the context of the second part of the present plea. Accordingly, those arguments cannot succeed.
597 It follows that the present part of the plea must be rejected.
(e) The fifth part, alleging a failure on the Commission’s part to take mitigating circumstances into account
598 The applicant claims that the Commission failed to take into account the mitigating circumstances that it put forward during the administrative procedure, namely the intervention of the Commission’s Hong Kong office with regard to the SSC and the follow-my-leader approach which it took with regard to Lufthansa, together with the fact that there is no evidence that it was aware of the extensive contacts Lufthansa had with other carriers (apart from AF and KLM).
599 The Commission disputes the applicant’s arguments.
600 In that regard, it should be borne in mind that point 27 of the 2006 Guidelines provides that, in setting the amount of the fine, the Commission may take into account circumstances that result in an increase or decrease in the basic amount, on the basis of an overall assessment which takes account of all the relevant circumstances.
601 Point 29 of the 2006 Guidelines provides that the basic amount of the fine may be reduced where the Commission finds that mitigating circumstances exist. That point contains an indicative and non-exhaustive list of five types of mitigating circumstances which may be taken into account, including the substantially limited nature of the involvement of the undertaking in question in the infringement and the authorisation or encouragement of the anticompetitive conduct in question by public authorities or by legislation.
602 First, in recital 1263 of the contested decision, the Commission found that there was no regulatory regime that required the incriminated carriers to collude on their fares. However, it found, in recitals 1264 and 1265 of that decision, that some regulatory regimes had encouraged the incriminated carriers to engage in anticompetitive conduct and, consequently, granted them the general reduction of 15% of the basic amount of the fine, in accordance with point 29 of the 2006 Guidelines. In recital 1270 of that decision, the Commission rejected arguments based on the legitimate expectation that the incriminated carriers claimed to have derived from the attitude of the Commission’s Hong Kong office as regards the SSC.
603 Contrary to what the applicant claims, the conduct of the Hong Kong office was not such as to give rise to justified expectations on its part (see paragraph 464 above). Assuming that the applicant also intends to refer here to the letter that was actually sent by the Commission’s Hong Kong office to the local authorities, and not only to the draft which was not sent, it should be noted, as observed by the Commission in recital 1270 of the contested decision, that its content was limited to a question as to whether carriers would be authorised to charge a SSC, rather than adjusting rates. It did not deal in any way with the coordination relating to the SSC or, a fortiori, with its lawfulness under Article 101 TFEU, and, moreover, the author was not a source authorised to provide such assurances. The Commission was therefore justified in refusing to grant the applicant the benefit of a mitigating circumstance in respect of ‘the attitude of the Commission Hong Kong office’.
604 Secondly, in recitals 1257, 1269, 1284, 1285 and 1290 of the contested decision, the Commission rejected the applicant’s arguments based on its passive role in the single and continuous infringement, its allegedly limited involvement therein, the state of the market at the time of the cartel at issue, the attitude of the carriers’ customers and the existence of a compliance programme.
605 Contrary to what the applicant claims, that assessment is not vitiated by any error.
606 Although an exclusively passive or follow-my-leader role in the cartel was expressly cited as a potential mitigating circumstance in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (see paragraph 571 above), it is no longer explicitly included among the mitigating circumstances which may be accepted under the 2006 Guidelines on the method of setting fines. That reflects a deliberate political choice no longer to ‘encourage’ passive conduct by those participating in an infringement of the competition rules (judgment of 12 July 2018, Sumitomo Electric Industries and J-Power Systems v Commission, T‑450/14, not published, EU:T:2018:455, paragraph 114), which falls within the Commission’s discretion in determining and implementing competition policy (see, to that effect, judgment of 9 September 2015, Toshiba v Commission, T‑104/13, EU:T:2015:610, paragraph 207).
607 Nonetheless, even though it was not required to do so, the Commission examined in the contested decision whether the circumstances invoked by the applicant regarding its follow-my-leader role could constitute a mitigating circumstance, in the light of its discretion in that regard (see, to that effect, judgment of 5 October 2011, Transcatab v Commission, T‑39/06, EU:T:2011:562, paragraph 343). It is therefore for the Court to review, in the light of the arguments put forward by the applicant, whether those assessments are vitiated by errors.
608 According to the case-law, an exclusively passive or follow-my-leader role in the infringement implies, by definition, that the undertaking concerned will adopt a ‘low profile’, that is to say not actively participate in the creation of any anticompetitive agreements and concerted practices. The factors that may indicate that an undertaking has played such a role include the situation where its participation in cartel meetings is significantly more sporadic than that of the ordinary members of the cartel and also that where a representative of another undertaking which has participated in the infringement makes an express declaration regarding the role played by that undertaking in the cartel, having regard to all the relevant circumstances of the individual case (see, to that effect, judgment of 9 July 2003, Cheil Jedang v Commission, T‑220/00, EU:T:2003:193, paragraphs 167 and 168 and the case-law cited).
609 In the present case, the applicant merely submits that it was not aware of the intensive contacts between Lufthansa and other carriers, apart from AF and KLM. However, the applicant has failed to explain how its knowledge of Lufthansa’s participation is decisive for the purpose of characterising its own role in the cartel at issue when, moreover, the contested decision does not describe Lufthansa as a leader or identify it as the ‘core’ of the cartel. At most, the Commission stated, in recital 124 of the contested decision, that Lufthansa ‘[stated] that the core group of contacts that … the pricing manager … had [been] involved [in were] principally bilateral mobile phone calls between him and his counterparts at other carriers’ and that he had ‘had approximately 40 telephone calls with each of [British Airways, AF, KLM and Cargolux] in the time period between the beginning of 2003 and the end of 2005’. However, at no time did the Commission endorse Lufthansa’s statements as to the existence and scope of such a group, nor did it consider that the contacts within it differed from the other contacts at issue.
610 Accordingly, the Commission did not err in refusing to grant the applicant the benefit of a mitigating circumstance relating to its alleged follow-my-leader role.
611 The present part of the plea must therefore be rejected.
(f) The application of the ceiling of 10% of turnover
612 The applicant considers that the Commission was right to conclude, in recital 1294 of the contested decision, that it was ‘fair to use its discretion and reduce the adjusted basic amount of the fine to 10% of the worldwide turnover in 2009 when the worldwide turnover of an addressee in 2016 was higher than the worldwide turnover of an addressee in 2009’. Nevertheless, the applicant emphasises that that outcome is in any event warranted by the principle that an undertaking must not be put in a worse position simply because the Commission has made errors, as in the present case.
613 The Commission has not made any specific comments on those observations.
614 It should be noted that the applicant does not challenge the application of the ceiling of 10% of worldwide turnover in 2009, but merely seeks to highlight a further justification for the approach adopted in the contested decision. The present observations must therefore be rejected as must the seventh plea in law in its entirety.
615 In the light of all the foregoing considerations, the claims for annulment must be dismissed.
B. The claim for amendment of the amount of the fine imposed on the applicant
616 The applicant requests the Court to exercise its unlimited jurisdiction in order to reduce the amount of the fine imposed on it so that it is reasonable, proportionate and accurately reflects the particular facts and circumstances of the present case, notably the nature and scope of the alleged infringement.
617 It is apparent from the application that the applicant intends to rely in support of the present head of claim on all the arguments raised in support of the seventh plea in its application for annulment. In addition to those arguments the applicant raised another argument in its replies to the Court’s measures of organisation of procedure concerning sales on non-EU EEA-Switzerland routes.
618 By its first argument, the applicant submits that its turnover from inbound freight services should not be included in the value of sales (first part of the seventh plea).
619 The second to fifth arguments relate, in essence, to the gravity factor and the additional amount (second and fourth parts of the seventh plea):
– by its second argument, the applicant submits that account should be taken of the probable lack of impact of the single and continuous infringement on the freight market;
– by its third argument, the applicant argues that account should be taken of the fact that the conduct at issue did not consist of a price-fixing cartel at supra-competitive level;
– by its fourth argument, the applicant maintains that account should be taken of the varying degrees of involvement of the incriminated carriers in the single and continuous infringement;
– by its fifth argument, the applicant submits that account should be taken of the fact that the Commission failed to establish the worldwide nature of the cartel at issue.
620 The sixth relates, in essence, to the adaptation of the multipliers to reflect the allegedly limited duration of the applicant’s participation in the element of the single and continuous infringement relating to the FSC only from 2003 onwards (third part of the seventh plea).
621 The seventh and eighth arguments concern the adjustments to be made to the basic amount (fifth part of the seventh plea):
– by its seventh argument, the applicant submits that account should be taken of the intervention of the Commission’s Hong Kong office with regard to the SSC;
– by its eighth argument, the applicant claims that account should be taken of its follow-my-leader approach toward Lufthansa and its lack of awareness of the existence of intensive contacts between Lufthansa and other carriers (apart from AF and KLM).
622 By its ninth argument, in response to the Court’s measures of organisation of procedure, the applicant claims that the Court should uphold the plea raised of its own motion and exercise its unlimited jurisdiction to reduce the amount of the fine accordingly.
623 The Commission contends that the applicant’s claims should be rejected and requests that the benefit of the general 50% reduction and the general 15% reduction be withdrawn from it, should the Court find that the turnover from the sale of inbound freight services could not be included in the value of sales.
624 In EU competition law, the review of legality is supplemented by the unlimited jurisdiction which the Courts of the European Union are afforded by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. That jurisdiction empowers the Courts of the European Union, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the amount of the fine or penalty payment imposed (see judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 63 and the case-law cited).
625 That exercise involves, in accordance with Article 23(3) of Regulation No 1/2003, taking into consideration, with respect to each undertaking sanctioned, the seriousness and duration of the infringement at issue, in compliance with the principles of, inter alia, adequate reasoning, proportionality, the individualisation of penalties and equal treatment, and without the Courts of the European Union being bound by the indicative rules defined by the Commission in its guidelines (see, to that effect, judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 90). It must, however, be pointed out that the exercise of unlimited jurisdiction provided for in Article 261 TFEU and Article 31 of Regulation No 1/2003 does not amount to a review of the Court’s own motion, and that proceedings before the Courts of the European Union are inter partes. With the exception of pleas involving matters of public policy which the Courts are required to raise of their own motion, it is therefore for the applicant to raise pleas in law against the decision at issue and to adduce evidence in support of those pleas (judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 64).
626 It is thus for the applicant to identify the impugned elements of the contested decision, to formulate grounds of challenge in that regard and to adduce evidence – direct or circumstantial – to demonstrate that its objections are well founded (judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 65).
627 In order to satisfy the requirements of Article 47 of the Charter when conducting a review in the exercise of their unlimited jurisdiction with regard to the fine, the Courts of the European Union are, for their part, bound, in the exercise of the powers conferred by Articles 261 and 263 TFEU, to examine all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement (see judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 75 and the case-law cited; judgment of 26 January 2017, Villeroy & Boch Austria v Commission, C‑626/13 P, EU:C:2017:54, paragraph 82).
628 Lastly, in order to determine the amount of the fine, it is for the Courts of the European Union to assess for themselves the circumstances of the case and the nature of the infringement in question (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 89) and to take into account all of the factual circumstances (see, to that effect, judgment of 3 September 2009, Prym and Prym Consumer v Commission, C‑534/07 P, EU:C:2009:505, paragraph 86), including, where appropriate, additional information which is not mentioned in the Commission decision imposing the fine (see, to that effect, judgments of 16 November 2000, Stora Kopparbergs Bergslags v Commission, C‑286/98 P, EU:C:2000:630, paragraph 57, and of 12 July 2011, Fuji Electric v Commission, T‑132/07, EU:T:2011:344, paragraph 209).
629 In the present case, it is for the Court, in the exercise of its unlimited jurisdiction, to determine, in the light of the arguments put forward by the parties in support of this claim, the amount of the fine which it considers most appropriate, having regard in particular to the findings made when examining the pleas raised in support of the claim for annulment and the plea raised of the Court’s own motion and taking into account all the relevant factual circumstances.
630 The Court considers that it is not appropriate, in order to determine the amount of the fine to be imposed on the applicant, to depart from the method of calculation followed by the Commission in the contested decision, which it has not previously determined to be vitiated by illegality, as follows from the examination of the seventh plea above. Although it is for the Court, in the exercise of its unlimited jurisdiction, to assess for itself the circumstances of the case and the nature of the infringement in question in order to determine the amount of the fine, the exercise of unlimited jurisdiction cannot result, when the amount of the fines to be imposed is determined, in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement. Accordingly, the guidance which can be drawn from the guidelines is, as a general rule, capable of guiding the Courts of the European Union in their exercise of that jurisdiction where the Commission has applied those guidelines for the purposes of calculating the fines imposed on the other undertakings penalised by the decision which those Courts are asked to examine (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 80 and the case-law cited).
631 In those circumstances, first of all, it should be noted that the total value of sales amounted to EUR 928 056 907, taking into account the accession of the 10 new Member States as of May 2004. That value does not include any revenue from non-EU EEA-Switzerland routes, in respect of which the Court held in paragraphs 184 to 208 above that they did not fall within the scope of the single and continuous infringement. It follows from the applicant’s replies to the measures of organisation of procedure of the Court that it did not achieve any turnover on those routes during 2005.
632 Regarding the infringement period found against the applicant prior to May 2004, as the Commission stated in recital 1197 of the contested decision, it is necessary to take as a base, on intra-EEA and EU-Switzerland routes, sales values amounting, respectively, to EUR 1 308 322 and EUR 4 631, taking into account only the States that were already Contracting Parties of the EEA Agreement or those that were members of the European Union before May 2004.
633 As regards the first argument, which concerns the inclusion in the value of sales of turnover from the sale of inbound freight services, it must be observed that it refers to the first part of the seventh plea relied on in support of the claim for annulment. The Court has examined and rejected that part of the plea in paragraphs 539 to 543 above and nothing in the arguments put forward by the applicant in support of it makes it possible to consider that the inclusion in the value of sales of turnover from the sale of inbound freight services was such as to result in an inappropriate value of sales being used. On the contrary, excluding the turnover from the sale of inbound freight services from the value of sales would have prevented the applicant from being given a fine which was a proper measure of the harm that the applicant’s participation in the cartel at issue did to normal competition (see, to that effect, judgment of 28 June 2016, Portugal Telecom v Commission, T‑208/13, EU:T:2016:368, paragraph 236).
634 Next, it should be noted that, for the reasons set out in recitals 1198 to 1212 of the contested decision, the single and continuous infringement merits a gravity factor of 16%.
635 The second to fifth arguments do not prove the contrary. Those arguments refer, in essence, to the second and fourth parts of the seventh plea raised by the applicant in support of the claim for annulment. The Court rejected those parts, respectively, in paragraphs 544 to 587 and paragraphs 591 to 597 above and there is nothing to support the view that those arguments justify a gravity factor of less than 16%.
636 As regards, in particular, the probable lack of impact of the single and continuous infringement on the freight market, referred to in the second argument put forward in support of the present claims, it should be added that the amount of a fine cannot be regarded as inappropriate solely because it does not reflect the economic harm that has been or may have been caused by the alleged infringement (judgment of 29 February 2016, Schenker v Commission, T‑265/12, EU:T:2016:111, paragraph 287). That argument does not therefore justify a reduction in the gravity factor.
637 As regards the additional amount, for the same reasons as those set out in recitals 1198 to 1212 of the contested decision, and in the light of the considerations set out in paragraphs 593 to 596 above, the Court considers that an additional amount of 16% is appropriate.
638 Furthermore, it is apparent from recitals 1214 to 1217 of the contested decision that the duration for which the applicant was held liable for the single and continuous infringement was five years on intra-EEA routes, one year and nine months on EU-third country routes, three years and eight months on EU-Switzerland routes and eight months on non-EU EEA-third country routes. Since the Commission lawfully established the duration of the applicant’s participation in the single and continuous infringement, the sixth argument must be rejected and it is appropriate to use multipliers of 5, 19⁄12, 38⁄12 and 8⁄12, respectively.
639 The basic amount of the fine must therefore be set at EUR 408 475 562.
640 As regards the general 50% reduction, the Commission’s request that the benefit of that reduction be withdrawn from the applicant cannot be granted. As is apparent from the defence, that request presupposes that the Court holds that the turnover from the sale of inbound freight services could not be included in the value of sales. The Court refused to do so in paragraph 633 above.
641 Consequently, the basic amount of the fine after application of the general 50% reduction, which applies only to the basic amount in so far as it relates to non-EU EEA-third country routes and EU-third country routes (see recital 1241 of the contested decision), which the applicant has failed to challenge in its claim for annulment and which is not inappropriate, must be set, after rounding, at EUR 204 000 000. In that regard, the Court considers it appropriate to round that basic amount down to the first two digits, unless this leads to a reduction of more than 2% of the amount before rounding, in which case the amount is rounded to the first three digits. That method is objective, it allows all the incriminated carriers which have brought an action against the contested decision to benefit from a reduction and it avoids unequal treatment (see, to that effect, judgment of 27 February 2014, InnoLux v Commission, T‑91/11, EU:T:2014:92, paragraph 166).
642 Lastly, as regards the adjustments to the basic amount of the fine, it should be borne in mind that the applicant benefited from the general reduction of 15%, the sufficiency of which it disputes in the second part of the fifth plea and in the seventh and eighth arguments. However, for reasons similar to those set out in paragraphs 598 to 611 above, it must be held that nothing in the arguments put forward in that context is capable of establishing that that reduction is inappropriate. Conversely, the Commission’s request that the benefit of that reduction be withdrawn from the applicant cannot be granted for reasons similar to those set out in paragraph 640 above.
643 The Court does not consider that it is justified to grant the applicant an additional reduction on account of mitigating circumstances due to the fact that its participation in the meeting referred to in recital 387 of the contested decision has not been established or in view of the need to qualify the scope of the contacts referred to in recitals 250 and 350 of that decision. Those contacts were among the numerous bilateral and multilateral exchanges that the Commission relied on against the applicant, and the scope of its involvement in those exchanges, a fortiori in the elements of the single and continuous infringement relating to the FSC, in general remains fully substantiated.
644 Nor does the Court consider that the ninth argument justifies granting the applicant a reduction in the amount of the fine. That argument presupposes that the Court upheld the plea raised of its own motion. As is apparent from paragraphs 184 to 208 above, the Court rejected that plea in its entirety.
645 In those circumstances, the adjusted basic amount of the applicant’s fine must be set at EUR 173 400 000. Since that amount exceeds the limit of 10% of total turnover of the applicant’s EUR 942 million turnover in 2009, it should be reduced to EUR 94 000 000.
646 Furthermore, it must be held that the 15% leniency reduction granted to the applicant remains appropriate.
647 It follows that the final amount of the fine to be imposed on the applicant is EUR 79 900 000.
648 Since the amount of the fine imposed by the Commission in the contested decision is identical to that set by the Court in the exercise of its unlimited jurisdiction, there is no need to modify the amount of the fine set by the Commission in Article 3(f) of the contested decision. Consequently, the claim for amendment of the amount of the fine imposed on the applicant must be rejected.
IV. Costs
649 Under Article 134(1) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
650 According to Article 135(1) of the Rules of Procedure, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing its own, or even that it is not to be ordered to pay any. Furthermore, under Article 135(2) of those rules, the Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if that party has made the opposite party incur costs which the Court holds to be unreasonable or vexatious.
651 In the present case, the applicant has been unsuccessful and the Commission has expressly applied for costs. However, the Court considers that the circumstances of the case justify ordering the Commission to bear one third of its own costs and the applicant to bear its own costs and pay two thirds of those incurred by the Commission.
On those grounds,
THE GENERAL COURT (Fourth Chamber, Extended Composition)
hereby:
1. Dismisses the action;
2. Orders the European Commission to bear one third of its own costs;
3. Orders Cargolux Airlines International SA to bear its own costs and pay two thirds of those incurred by the Commission.
Kanninen | Schwarcz | Iliopoulos |
Delivered in open court in Luxembourg on 30 March 2022.
Table of contents
I. Background to the dispute
A. The administrative procedure
B. The Decision of 9 November 2010
C. The action challenging the Decision of 9 November 2010 before the Court
D. The contested decision
II. Procedure and forms of order sought
III. Law
A. The claim for annulment
1. The sixth plea in law, alleging lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services
(a) The first part of the plea, alleging incorrect interpretation of Regulation No 411/2004
(b) The second and third parts, alleging, respectively, an error in the application of the implementation test and an error in the application of the qualified effects test
(1) The effects of coordination in relation to inbound freight services taken in isolation
(i) The relevance of the effect at issue
(ii) The foreseeability of the effect at issue
(iii) The substantiality of the effect at issue
(iv) The immediacy of the effect at issue
(2) The effects of the single and continuous infringement taken as a whole
2. The plea, raised of the Court’s own motion, alleging lack of jurisdiction on the part of the Commission in the light of the EC-Switzerland Air Transport Agreement to find and penalise an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes
3. The first plea in law, alleging misuse of powers and a manifest error of assessment in taking into account evidence relating to routes and periods falling outside the competence of the Commission
4. The second plea in law, alleging breach of essential procedural requirements, infringement of the rights of the defence and manifest error of assessment
(a) The first part, alleging an error on the part of the Commission in so far as it concluded that the annulment of the Decision of 9 November 2010 did not affect the validity of the Statement of Objections
(b) The second part, alleging a defect vitiating the contested decision in so far as the conduct complained of therein is new or substantially different to that described in the Statement of Objections
5. The third plea in law, alleging an error of law and a manifest error of assessment in the application of Article 101 TFEU
6. The fourth plea in law, alleging a ‘manifest error of assessment of law and fact’ and breach of essential procedural requirements, the duty to state reasons and the rights of the defence
(a) The first part, alleging breach of the rules governing the burden of proof
(1) Proof of the single nature of the single and continuous infringement
(2) Proof of the applicant’s participation in the single and continuous infringement
(b) The second part, alleging that the findings made in the contested decision are vague, ambiguous and elusive
7. The fifth plea in law, alleging errors of fact and manifest errors of assessment
(a) Admissibility of Annexes A.13 and A.14
(b) The first part, alleging errors of fact and assessment
(1) The use of evidence predating the infringement period found against the applicant
(2) The taking into account of evidence that was no more than ‘intelligence gathering of market information based on publicly available information’
(3) The taking into account of contacts in which non-incriminated carriers participated
(4) The taking into account of public announcements on the FSC that were sent to a wide distribution list
(5) The failure to take sufficient account of the letters from the CAD of 5 September 2008 and 3 September 2009
(6) The allegedly unlawful extension of the scope of the findings of infringement
(c) The second part, alleging, in essence, errors in establishing the applicant’s participation in the elements relating to the SSC, the FSC and the refusal to pay commission
(1) Proof of the applicant’s participation in the element relating to the FSC
(2) Proof of the applicant’s participation in the element relating to the SSC
(3) Proof of the applicant’s participation in the element relating to the refusal to pay commission
(d) The third part, alleging that the Commission used the concept of a single and continuous infringement as a substitute for proof
(e) The fourth part, alleging that the Commission failed to establish the ‘worldwide’ nature of the single and continuous infringement
8. The seventh plea in law, alleging errors in the calculation of the amount of the fine
(a) The first part, alleging an error in the calculation of the value of sales
(b) The second part, alleging errors in the assessment of the gravity of the single and continuous infringement
(c) The third part, alleging errors in the calculation of the duration of the applicant’s participation in the infringement
(d) The fourth part, alleging incorrect application of an ‘additional amount’ of 16%
(e) The fifth part, alleging a failure on the Commission’s part to take mitigating circumstances into account
(f) The application of the ceiling of 10% of turnover
B. The claim for amendment of the amount of the fine imposed on the applicant
IV. Costs