Action brought on 25 January 2011 - Singapore Airlines and Singapore Airlines Cargo PTE v Commission

(Case T-43/11)

Language of the case: English

Parties

Applicants: Singapore Airlines Ltd and Singapore Airlines Cargo PTE Ltd (represented by: J. Kallaugher, Solicitor, J. P. Poitras, Solicitor, J. R. Calzado and É. Barbier de la Serre, lawyers)

Defendant: European Commission

Form of order sought

Annul Commission's Decision of 9 November 2010 in case COMP/39.258 - Airfreight;

As a complement, or in the alternative, reduce the amount of fine imposed on the applicants; and

Order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on six pleas in law.

First plea in law, alleging that the decision breaches essential procedural requirements, including:

The right to an independent and impartial tribunal;

The right to legal certainty and foreseeable penalties; and

The applicants' rights of the defence, since Singapore Airlines Cargo PTE Ltd was not granted access to the replies to the Statement of Objections filed by the other undertakings to which the Statement of Objections was addressed and other relevant material in the Commission's possession that is relied on in the decision.

Second plea in law, alleging that the decision is vitiated by a series of errors of fact and law in the application of Article 101 TFEU in relation to the nature and scope of the supposed "cartel", as:

The decision is vitiated by inadequate reasoning because it fails to explain the basis for its central findings and does not define the relevant markets.

The decision is affected by errors of assessment in relation to the nature and scope of the supposed "cartel". In particular, the contacts alleged in the decision do not constitute a single worldwide network and the finding of a "common aim" linking these contacts is not supported by the evidence;

The Commission has erred in law when it defined the elements of the alleged complex infringement;

The Commission has wrongly assessed the alleged complex infringement relating to non-commissioning of surcharges; and

The Commission has committed errors of law and of assessment when it treated the three alleged "elements" of the infringement as a single infringement.

Third plea in law, alleging that the Commission has committed errors of law and fact when it applied Article 101 TFEU to conduct related to sales in foreign jurisdictions, as:

The Commission has committed errors of law and fact when it applied Article 101 TFEU to conduct affecting markets outside the EU, thereby breaching the rules limiting EU's jurisdiction on such conduct; and

The Commission has committed errors of law and assessment when it refused to take into account the fact that in foreign jurisdictions that feature prominently in the decision, the decision does not properly reflect the fact that conduct was actively supervised and effectively required by government agencies.

Fourth plea in law alleging that the Commission has committed a number of errors in inputting the alleged infringement to Singapore Airlines Cargo PTE Ltd, as:

The Commission has committed several errors of law and assessment when it analyzed and took into account contacts prior to 1 May 2004, contacts regarding demands by forwarders for payments of commissions, contacts regarding the security surcharge, contacts regarding the fuel surcharge outside the EU and contacts regarding the fuel surcharge in the EU;

The Commission has committed errors of law and appreciation regarding the use of WOW alliance contacts to establish Singapore Airlines Cargo PTE Ltd's participation in the alleged infringement; and

The Commission has not established that Singapore Airlines Cargo PTE Ltd knew or should have known about the alleged infringement or its constituent elements.

Fifth plea in law alleging that the Commission has breached its duty, pursuant to the principle of sound administration, to examine carefully and impartially all the elements of the case.

Sixth plea in law, alleging that the decision has made several errors of law and assessment in calculating the fine imposed on the applicants, as:

The Commission has infringed 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 principle of proportionality and the principle of equality in calculating the value of sales, as it has not taken into account:

The fact that inbound turnover does nit relate to sales within EEA ;

The limited geographic scope of the conduct in relation to which the decision finds an infringement;

The relative role of the applicants; and

The fact that the supposed coordination only involved surcharges.

The Commission failed to give proper weight to the scope and duration of the Singapore Airlines Cargo PTE Ltd's alleged participation in the infringement; and

The failure of the decision to grant a reduction for limited participation to Singapore Airlines Cargo PTE Ltd constitutes a breach of principle of equality of treatment.

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