Action brought on 24 January 2011 - Japan Airlines v Commission

(Case T-36/11)

Language of the case: English

Parties

Applicant: Japan Airlines International Co., Ltd. (represented by: J.-F. Bellis and K. Van Hove, lawyers, and R. Burton, Solicitor)

Defendant: European Commission

Form of order sought

annul the Commission Decision of 9 November 2010;

in the alternative, in the exercise of its unlimited jurisdiction, to reduce the fine imposed on the applicant and AL and Japan Airlines Corporation; and

order the Commission to pay the cost of the proceedings.

Pleas in law and main arguments

Application for annulment of Commission Decision C(2010) 7694 Final of 9 November 2010 in case COMP/39258 - Airfreight. This Decision finds that the applicant, along with Japan Airlines Corporation (JAC) (which has been absorbed by the applicant and ceased to exist), infringed Article 101 TFEU and Article 53 EEA by coordinating with other carriers its pricing behaviour for air freight services in respect (i) fuel surcharges, (ii) security surcharges, and (iii) the non-payment of commissions on surcharges.

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

First plea in law, alleging that the decision violates Article 101 TFEU and Article 53 EEA in defining the scope of the infringement in which the applicant was found to have participated to include routes that the applicant did not serve and had no legal right to serve.

Second plea in law, alleging that the decision violates Article 101 TFEU and Article 53 EEA in asserting jurisdiction over inbound airfreight services on EEA-third country routes to the extent that such services are sold to customers located outside of the EEA.

Third plea in law, alleging that the decision violates the principles of non-discrimination and proportionality in applying different standards of proof to different carriers.

Fourth plea in law, alleging that the decision violates the 2006 Fining Guidelines and the principle of proportionality by including in the relevant value of sales used as the basis for calculating the fine revenues derived from elements of price for airfreight services unrelated to the infringement.

Fifth plea in law, alleging that the decision violates the 2006 Fining Guidelines and the principle of legitimate expectations by including in the relevant value of sales used as the basis for calculating the fine revenues derived from airfreight services on inbound routes between EEA States and third countries.

Sixth plea in law, alleging that the decision violates the principle of proportionality in limiting the reduction in the fine granted to the applicant on account of the regulatory framework to 15%.

Seventh plea in law, alleging that the decision violates the principle of non-discrimination in failing to grant the applicant a 10% reduction in the fine on account of limited involvement in the infringement where such a reduction was granted to other addressees of the decision that are in a position objectively similar to that of the applicant.

Eighth plea in law, alleging that the decision violates the principle of proportionality in failing to take account of the specific circumstances of the case.

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