Action brought on 31 May 2017 – British Airways v Commission

(Case T-341/17)

Language of the case: English

Parties

Applicant: British Airways plc (Harmondsworth, United Kingdom) (represented by: J. Turner, QC, R. O’Donoghue, Barrister and A. Lyle-Smythe, Solicitor)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul 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 whole or in part;

further or alternatively, and in the exercise of the General Court’s unlimited jurisdiction, annul or reduce the fine imposed on the applicant under the contested decision;

order the Commission to pay the applicant’s costs of these proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on nine pleas in law.

First plea in law, alleging that the Commission erred in law, and/or infringed an essential procedural requirement by adopting an infringement decision which was based on two inconsistent assessments of the relevant facts and law, and which was accordingly incoherent, incompatible with the principle of legal certainty, and liable to give rise to confusion within the EU legal order.

Second plea in law, alleging that the Commission acted in breach of its duty under Article 266 TFEU by adopting a measure intended to address the fundamental errors identified by the General Court judgment in Case T-48/11, when re-adopting the decision against the applicant, but which compounded rather than remedied those errors.

Third plea in law, alleging that the Commission erred in law and/or breached an essential procedural requirement by failing to state adequate reasons in respect of the imposition of the fine against the applicant. According to the applicant, the imposition of the fine was based on findings of infringement not contained in the measure in question, and which were inconsistent with the findings that were contained in the measure in question. The applicant further or alternatively puts forward that the Commission’s approach in this regard was beyond its competence.

Fourth plea in law, alleging that the Commission lacked jurisdiction to apply Article 101 TFEU/Article 53 EEA Agreement to alleged restrictions of competition in respect of the provision of airfreight services on routes inbound into the EU/EEA. The applicant further puts forward that such restrictions fell outside the territorial scope of Article 101 TFEU and/or Article 53 EEA.

Fifth plea in law, alleging that the Commission erred in its application of Article 101 TFEU/Article 53 EEA Agreement to coordination on surcharges for air freight services to/from certain countries due to the applicable legal and regulatory regimes and their practical effects, and the fine reduction applied in this respect was arbitrary and inadequate. The applicant further puts forward that in any case, as respects certain jurisdictions the Commission’s reasoning is manifestly inadequate.

Sixth plea in law, alleging that the Commission erred in concluding that the applicant participated in an infringement concerning the (non)payment of commission of surcharges.

Seventh plea in law, alleging that the Commission erred in determining the “value of sales” for the purpose of setting fines in the decision. According to the applicant, it should have determined that only revenue associated with surcharges was relevant and should have excluded turnover associated with services inbound into the EU/EEA.

Eighth plea in law, alleging that the Commission erred in finding that the applicant was the ninth leniency applicant and therefore was entitled to only a 10% reduction in its fine, despite the applicant in fact being the first to apply for leniency after the immunity applicant, and to have added significant value.

Ninth plea in law, alleging that the Commission erred in its assessment of the starting date of the applicant’s infringement. According to the applicant, the relevant starting date was October 2001, and the evidence put forward to attempt to prove a different earlier date does not satisfy the requisite legal standard.

____________