Case T‑341/17
(published in extract form)
British Airways plc
v
European Commission
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 air freight services (fuel surcharge, security surcharge, payment of commission on surcharges) – Exchange of information – Territorial jurisdiction of the Commission – Obligation to state reasons – Article 266 TFEU – State coercion – Single and continuous infringement – Amount of the fine – Value of sales – Duration of participation in the infringement – Mitigating circumstances – Encouragement of anticompetitive conduct by public authorities – Unlimited jurisdiction)
1. Competition – Transport – Competition rules – Air transport – Regulation No 411/2004 – Scope – EU-third country routes and non-EU EEA-third country routes – Inbound airfreight services – Included
(Arts 101 and 102 TFEU; EEA Agreement, Arts 53 and 54 and Annex XIII and Protocol 21, as amended by EEA Joint Committee Decision No 40/2005; Council Regulations No 1/2003, Art. 32(c), and No 411/2004, Arts 1 and 3)
(see paragraphs 91-95)
2. Competition – EU rules – Territorial scope – Jurisdiction of the Commission – Conformity with public international law – Implementation or qualified effects of abusive practices in the EEA – Alternative methods – Criterion of the immediate, substantial and foreseeable effect – Scope where conduct has the object of restricting competition
(Art. 101 TFEU; EEA Agreement, Art. 53)
(see paragraphs 97-99, 111, 113-122, 127-129, 134-142, 145-147, 156-161)
3. Action for annulment – Pleas in law – Lack of competence of the institution which adopted the contested measure – Examination by the EU judicature of its own motion – Condition – Compliance with the principle that the parties should be heard
(Art. 263 TFEU)
(see paragraphs 176, 177)
4. Action for annulment – Judgment annulling a measure – Effects – Obligation to implement – Scope – Commission decision finding an infringement – Annulment on grounds of a defective statement of reasons of the Court’s own motion within the limits of the form of order sought by the applicant – Adoption of a new decision taking into account the findings of infringement not called into question by the operative part of the judgment annulling a measure and new findings – Whether permissible – Obligation to state reasons – Scope
(Arts 101, 263, 264, 266 and 296 TFEU)
(see paragraphs 204-209, 222, 232-236, 239-246, 254)
5. Action for annulment – Judgment annulling a measure – Scope – Annulment of a Commission decision finding a breach of the competition rules – Scope circumscribed in accordance with the limits of the dispute set by the applicant in the form of order sought – Consequence – Limitation of the scope of the obligation to adopt implementing measures – Exclusion of findings unrelated to the subject matter of the dispute
(Arts 101, 263, 264 and 266 TFEU)
(see paragraphs 215-222)
6. Competition – EU rules – Substantive scope – Conduct imposed by State measures – Precluded – Scope – State constraint exerted by a third country – Irrelevant – Conformity with public international law
(Arts 101 and 102 TFEU)
(see paragraphs 263, 265-269)
7. Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Anticompetitive conduct authorised or encouraged by public authorities – Choice of the amount of the general reduction applied on that basis – Obligation to state reasons – Scope – No obligation for the Commission to abide by its previous decision-making practice
(Art. 101 TFEU; EEA Agreement, Art. 53; EC-Switzerland Air Transport Agreement, Art. 8; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 29)
(see paragraphs 326-330)
8. Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission – Means of proof – Reliance on a body of evidence – Assessment of the relevance and evidential value of the various items of evidence relied on – Impact on the overall assessment of the body of evidence
(Art. 101 TFEU; EEA Agreement, Art. 53)
(see paragraphs 334, 335, 360, 366, 381, 386)
9. Action for annulment – Judgment annulling a measure – Scope – Partial annulment of an EU legal act – Partial annulment of a Commission decision characterising various instances of anticompetitive conduct as a single and continuous infringement and imposing a fine – Inadequacy of the evidence relied on in order to establish the liability of the applicant undertaking for one of the components of the single and continuous infringement – No effect on the lawfulness of the finding of that undertaking’s participation in the global infringement
(Arts 101 and 264, first para., TFEU; EEA Agreement, Art. 53; EC-Switzerland Air Transport Agreement, Art. 8)
(see paragraphs 387, 467, 468)
10. Competition – Fines – Amount – Determination – Determination of the basic amount – Determination of the value of sales – Sales carried out in direct or indirect relation to the infringement – Cartel in the airfreight services sector – Cartel relating to several elements of the price of freight services – Taking into account the entire amount of sales linked to freight services – Whether permissible
(Art. 101 TFEU; EEA Agreement, Art. 53; EC-Switzerland Air Transport Agreement, Art. 8; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 13)
(see paragraphs 393-401)
11. Competition – Fines – Amount – Determination – Leniency rules – Reduction of the fine in return for the cooperation of the undertaking concerned – Conditions – Significant added value of the evidence provided by the undertaking concerned – Discretion of the Commission – Criteria – Respect for the principle of equal treatment – Comparability of situations
(Art. 101(1) TFEU; EEA Agreement, Art. 53; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 298/11, points 20 to 24)
(see paragraphs 413-419, 423-438)
12. Agreements, decisions and concerted practices – An undertaking’s participation in anticompetitive initiatives – Sufficiency, in order to engage the liability of the undertaking, of tacit approval without publicly distancing itself or reporting the matter to the competent authorities
(Art. 101(1) TFEU; EEA Agreement, Art. 53)
(see paragraphs 447-450)
13. Competition – Fines – Amount – Determination – Judicial review – Unlimited jurisdiction of the EU judicature – Scope – Limit – Observance of the principle of non-discrimination – Account taken of the Guidelines on the method of setting fines
(Art. 261 TFEU; Council Regulation No 1/2003, Art. 31; Commission Notice 2006/C 210/02)
(see paragraphs 479-485)
Résumé
The applicant, British Airways plc, is an air transport company operating in the market for airfreight.
It is one of the 19 addressees 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) (‘the contested decision’). By that decision, the European Commission found that there had been a single and continuous infringement of those provisions whereby the undertakings in question had coordinated, during periods between 1999 and 2006, their pricing behaviour in the provision of freight services on a global basis. It imposed a fine of EUR 104 040 000 on the applicant for its participation in that infringement.
On 7 December 2005, the Commission received, under its 2002 Leniency Notice, (1) an application for immunity lodged by Lufthansa and two of its subsidiaries. That application mentioned that there were anticompetitive contacts between a number of undertakings operating on the airfreight market (‘the carriers’) with respect to various elements forming part of the prices charged for services on that market, namely the imposition of ‘fuel’ and ‘security’ surcharges and, in essence, the refusal to grant freight forwarders a discount on those surcharges. The evidence gathered by the Commission and its investigations led it to address, on 19 December 2007, a statement of objections to 27 carriers and subsequently to adopt, on 9 November 2010, against 21 carriers including the applicant, an initial decision. (2) However, that decision was annulled by the General Court by judgments of 16 December 2015, (3) within the limit of the respective claims for annulment to that end, on account of contradictions vitiating the statement of reasons for that decision.
Taking the view, in essence, that the General Court had erred in law by taking refuge behind the prohibition on ruling ultra petita in order to limit the scope of the annulment that it had thus ordered after finding of its own motion a defective statement of reasons vitiating the initial decision in its entirety, the applicant brought an appeal against the judgment delivered against it. By judgment of 14 November 2017, (4) the Grand Chamber of the Court of Justice dismissed that appeal as unfounded in its entirety.
Ruling on the action brought by the applicant against the contested decision in so far as it concerns the applicant, the General Court upholds in part the claim for annulment of the contested decision, as well as the claim for a reduction of the amount of the fine imposed on the applicant. More specifically, it annuls the contested decision so far as concerns the finding that the applicant participated in the component of the infringement relating to the refusal to pay commission, regarding that finding as insufficiently substantiated, and consequently reduces the amount of the fine in the light of the limited nature of the applicant’s participation in the infringement. By contrast, called upon to rule on the requirements arising from the obligation to adopt the necessary measures to comply with a judgment following the annulment of a decision finding an infringement of EU competition rules, the General Court holds that the Commission was entitled, without warranting criticism from the applicant, to impose a fine on the applicant also on the basis of the findings of infringement made in the operative part of the initial decision, in so far as they had not been disputed and had therefore become final.
Assessment of the General Court
In the first place, the General Court holds that the Commission did not exceed the limits of its own territorial jurisdiction when it found that there had been a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement, affecting flights on ‘inbound’ air routes, understood as routes from airports in third countries to those in Member States of the European Union or other States party to the European Economic Area which are not members of the European Union, within the periods referred to in the contested decision.
In the second place, the General Court rejects the plea, raised of its own motion, alleging lack of jurisdiction on the part of the Commission to find and penalise an infringement of Article 53 of the EEA Agreement on routes between Switzerland, on the one hand, and Norway and Iceland, on the other. That plea is unfounded, since it is apparent from the operative part of the contested decision that the Commission did not find any infringement of that provision on those routes.
In the third place, the General Court examines the applicant’s complaints seeking to dispute the procedures for complying with the judgment annulling the decision concerning the applicant. In that regard, the General Court notes, in particular, that the scope of a judgment annulling a measure must be assessed in the light of the limits of the dispute set by the applicant in the form of order sought. In those circumstances, the General Court concludes that the Commission was entitled to find, without contradicting itself or failing to comply with its obligation to adopt the necessary measures to comply with the judgment, in respect of the applicant, that there was no need to alter findings of infringement which had not been disputed by the applicant and which it could therefore regard as definitive in respect of the applicant, even if the co-perpetrators of the infringements at issue were not strictly the same. It is therefore to no avail that the applicant criticises the approach adopted by the Commission that led the Commission to impose on it a fine which did not relate exclusively to the findings of infringement made in the contested decision. In that regard, the General Court also states that, contrary to what the applicant submits, the appeal that the applicant brought in order to dispute the limitation in respect of it of the annulment of the contested decision in no way affects the validity of the approach thus adopted by the Commission, since that appeal had no suspensive effect and, in any event, was not capable of extending the scope of the form of order sought that circumscribed the subject matter of the dispute.
In the fourth place, the General Court also examines the complaints seeking, in essence, to dispute the conclusions drawn by the Commission from the examination of the regulatory schemes of various third countries, as well as the adequacy of the reasons given in that regard, concluding that those complaints are not well founded. First of all, the General Court holds that the principles governing the State-coercion defence apply both to the regulations of Member States and to those of third countries and that the burden of proof lies with the party relying on that defence. Next, the Commission was legitimately entitled to conclude that the applicant had failed to prove that it had acted under duress from the schemes concerned. Lastly, in so far as the examination of those schemes led the Commission to accept that they could have encouraged the applicant’s unlawful conduct, justifying its granting the applicant the benefit of mitigating circumstances by applying a general reduction, the Commission duly explained why it chose the rate of 15% applied for that purpose.
In the fifth place, in so far as the Commission concluded that the applicant participated in an infringement relating to the refusal to grant discounts, the General Court finds, however, that the evidence relied on by the Commission as a basis for that conclusion is insufficient and, consequently, annuls the contested decision in so far as it finds that the applicant participated in that component of the infringement.
In the sixth place, the General Court examines the applicant’s complaints concerning the determination of the amount of the fine that the Commission imposed on it, in particular those concerning the calculation of the reduction granted under the leniency programme. In that regard, it notes that the 2002 Leniency Notice makes the grant of a reduction of the fine conditional, inter alia, on the submission of conclusive evidence representing significant added value – for the purpose of establishing the facts in question – with respect to the evidence already in the Commission’s possession. Following an in-depth examination of the items of evidence adduced by the applicant – the value of which, in the applicant’s view, was disregarded by the Commission – the General Court finds, however, that it was by means of a fair assessment of the value of each of those items of evidence that the Commission could conclude that their added value was inadequate. In any event, the applicant cannot reasonably rely on the principle of equal treatment in order to dispute the less favourable treatment to which it claims to have been subject as compared to the treatment applied to other carriers to which the contested decision is addressed, given that those carriers were not in a situation comparable to its own.
In the seventh and last place, the General Court makes use of its unlimited jurisdiction to rule on the claims for a reduction of the amount of the fines imposed. Without departing from the method of calculation used by the Commission in the contested decision, the General Court draws, on that basis, the conclusions from the partial annulment of the contested decision in so far as that decision found that the applicant had participated in the component of the infringement relating to the refusal to grant discounts. Consequently, the amount of the fine imposed on the applicant, set at EUR 104 040 000 by the Commission, is reduced to EUR 84 456 000.