Action brought on 25 January 2011 - SAS Cargo Group and Others v Commission

(Case T-56/11)

Language of the case: English

Parties

Applicants: SAS Cargo Group A/S (Kastrup, Denmark), Scandinavian Airlines System Denmark-Norway-Sweden (Stockholm, Sweden), and SAS AB (Stockholm, Sweden) (represented by: M. Kofmann, B. Creve, lawyers, I. Forrester, QC, J. Killick and G. Forwood, Barristers)

Defendant: European Commission

Form of order sought

annul the decision in whole or in part;

declare that the applicants bear no responsibility for the global single, continuous and complex infringement as described in the decision, and, if necessary, annul the decision to the extent that it may find the applicants so responsible;

further, or in the alternative, reduce the level of the fine;

order the Commission to pay the costs;

make such other order as may be appropriate in the circumstance of the case.

Pleas in law and main arguments

Application for annulment of the Decision of the European Commission of 9 November 2010 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union in Case COMP/39258 - Airfreight concerning the coordination of various elements of the price to be charged for airfreight services in relation to fuel surcharge, security surcharge and the payment of commission on surcharges to freight forwarders

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

First plea in law, alleging an infringement of essential procedural requirements, as well as the applicants' rights to good administration, rights of defence and the general principle of equality of arms, by refusing the applicants access to relevant evidence, both inculpatory and exculpatory, which the Commission received after notification of its statement of objections, yet (the inculpatory evidence) is relied on in the contested decision.

Second plea in law, alleging the lack of competence in so far as the decision applies Articles 101 TFEU/53 EEA to airfreight services that were inbound into the EEA by applying the effects criterion when this is not relevant to the territorial jurisdiction of Articles 101 TFEU/53 EEA, and in incorrectly applying the implementation criterion to sales outside the EEA.

Third plea in law, alleging a manifest error in assessing the conduct in which the applicants were involved, and in concluding that these proved the applicants' participation in, or knowledge of, a global single and continuous infringement; moreover a number of instances of conduct relied on do not constitute an infringement of the relevant competition laws.

Fourth plea in law, alleging that the fine was unjustifiably and disproportionately high, taking into account the fact that the applicants were not involved in a global single and continuous infringement, as well as the relevant elements (including mitigating factors) that should have been taken into account when determining the amount of any fine imposed on the applicants.

Fifth plea in law, alleging a selective and arbitrary prosecution of the applicants (and others), while 72 other carriers which, according to the statement of objections and the decision, participated in supposedly illegal meetings or discussions and were never prosecuted. This raises serious issues under the European Convention on Human Rights and the Charter of Fundamental Rights of the EU.

Sixth plea in law, alleging an infringement of the applicants' right to an independent and impartial tribunal enshrined in Article 47(2) of the Charter of Fundamental Rights of the EU, in so far as the decision was adopted by an administrative authority which holds simultaneously powers of investigation and sanction.

____________