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 – Effect on trade between Member States – State coercion – Single and continuous infringement)
In Case T‑342/17,
Deutsche Lufthansa AG, established in Cologne (Germany),
Lufthansa Cargo AG, established in Frankfurt am Main (Germany),
Swiss International Air Lines AG, established in Basle (Switzerland),
represented by S. Völcker, lawyer,
applicants,
v
European Commission, represented by A. Dawes and H. Leupold, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU for annulment of Article 1 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) in so far as it relates to the applicants,
THE GENERAL COURT (Fourth Chamber, Extended Composition),
composed of H. Kanninen (Rapporteur), President, J. Schwarcz, C. Iliopoulos, D. Spielmann and I. Reine, Judges,
Registrar: S. Bukšek Tomac, Administrator,
having regard to the written part of the procedure and further to the hearing on 9 July 2019,
gives the following
Judgment
I. Background
1 The applicants, Deutsche Lufthansa AG (‘Lufthansa’) and its subsidiaries, Lufthansa Cargo AG and Swiss International Air Lines AG (‘Swiss’), form part of the Lufthansa Group, which operates in the airfreight (‘freight’) market.
2 In the freight sector, airlines provide for the carriage of cargo by air (‘the carriers’). As a general rule, the carriers supply freight services to freight forwarders, who arrange the transport of that cargo on behalf of shippers. In return, those freight forwarders pay those carriers a price consisting, on the one hand, of rates calculated on a per-kilogram basis and negotiated either on a long-term basis (typically one season, namely six months) or on an ad hoc basis, and, on the other hand, of various surcharges, which are intended to cover certain costs.
3 There are four different types of carrier: (i) those which exclusively operate dedicated freighter airplanes, (ii) those with cargo capacity on passenger flights, (iii) those with both dedicated freighter airplanes and with cargo capacity on passenger flights (combination airlines) and (iv) integrators with dedicated freighter airplanes providing both integrated express delivery services and general cargo services.
4 No carrier is able to serve all major cargo destinations in the world with sufficient frequency, and therefore agreements among carriers enabling them to increase their network coverage or improve their schedules have become common, including in the context of broader commercial alliances between carriers. At the material time, those alliances included, inter alia, the WOW alliance, which comprised Lufthansa, SAS Cargo Group A/S (‘SAS Cargo’), Singapore Airlines Cargo Pte Ltd (‘SAC’) and Japan Airlines International Co. Ltd (‘Japan Airlines’).
A. The administrative procedure
5 On 7 December 2005, the Commission of the European Communities received an application for immunity under the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) lodged by the applicants. The application alleged that extensive anticompetitive contacts were being maintained between a number of carriers with regard, in particular, to:
– the fuel surcharge (‘FSC’), which had been introduced to tackle rising fuel costs;
– the security surcharge (‘SSC’), which had been introduced to address the costs of certain security measures imposed following the terrorist attacks of 11 September 2001.
6 On 14 and 15 February 2006, the Commission carried out unannounced inspections at the premises of a number of carriers pursuant to Article 20 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1).
7 Following the inspections, a number of carriers submitted an application under the 2002 notice referred to in paragraph 5 above.
8 On 19 December 2007, after sending a number of requests for information, the Commission addressed a statement of objections to 27 carriers, including the applicants (‘the Statement of Objections’). It stated that those carriers had infringed Article 101 TFEU, Article 53 of the Agreement on the European Economic Area (EEA) and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (‘the EC-Switzerland Air Transport Agreement’) by participating in a cartel relating, in particular, to the FSC, the SSC and a refusal to pay commission on surcharges (‘the refusal to pay commission’).
9 The addressees submitted written observations in reply to the Statement of Objections.
10 An oral hearing was held from 30 June to 4 July 2008.
B. The Decision of 9 November 2010
11 On 9 November 2010, the Commission adopted Decision C(2010) 7694 final relating to a proceeding under Article 101 [TFEU], Article 53 of the EEA Agreement and Article 8 of the [EC-Switzerland Air Transport Agreement] (Case COMP/39258 – Airfreight) (‘the Decision of 9 November 2010’). That decision is addressed to 21 carriers (‘the carriers incriminated in the Decision of 9 November 2010’), namely:
– Air Canada;
– Air France-KLM (‘AF-KLM’);
– Société Air France (‘AF’);
– Koninklijke Luchtvaart Maatschappij NV (‘KLM’);
– British Airways plc;
– Cargolux Airlines International SA (‘Cargolux’);
– Cathay Pacific Airways Ltd (‘CPA’);
– Japan Airlines Corp.;
– Japan Airlines;
– Lan Airlines SA;
– Lan Cargo SA;
– Lufthansa Cargo;
– Lufthansa;
– Swiss;
– Martinair Holland NV (‘Martinair’);
– Qantas Airways Ltd (‘Qantas’);
– SAS AB;
– SAS Cargo;
– Scandinavian Airlines System Denmark-Norway-Sweden (‘SAS Consortium’);
– SAC;
– Singapore Airlines Ltd (‘SIA’).
12 The objections raised provisionally against the other addressees of the Statement of Objections were withdrawn.
13 The grounds of the Decision of 9 November 2010 described a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement, covering the EEA territory and Switzerland, by which the carriers incriminated in the Decision of 9 November 2010 had coordinated their behaviour as regards the pricing of freight services.
14 The operative part of the Decision of 9 November 2010, in so far as it related to the applicants, read as follows:
‘Article 1
The following undertakings infringed Article 101 of the TFEU and Article 53 of the EEA Agreement by participating in an infringement that comprised both agreements and concerted practices through which they coordinated various elements of price to be charged for [freight] services on routes between airports within the EEA, for the following periods:
…
f) [Lufthansa Cargo] from 14 December 1999 until 7 December 2005;
g) [Lufthansa] from 14 December 1999 to 7 December 2005;
h) [Swiss] from 2 April 2002 to 7 December 2005;
…
Article 2
The following undertakings infringed Article 101 of the TFEU by participating in an infringement that comprised both agreements and concerted practices through which they coordinated various elements of price to be charged for [freight] services on routes between airports within the European Union and airports outside the EEA, for the following periods:
…
l) [Lufthansa Cargo] from 1 May 2004 until 7 December 2005;
m) [Lufthansa] from 1 May 2004 until 7 December 2005;
n) [Swiss] from 1 May 2004 until 7 December 2005;
…
Article 3
The following undertakings infringed Article 53 of the EEA Agreement by participating in an infringement that comprised both agreements and concerted practices through which they coordinated various elements of price to be charged for [freight] services on routes between airports in countries that are Contracting Parties of the EEA Agreement but not Member States and third countries, for the following periods:
…
j) [Lufthansa Cargo] from 19 May 2005 until 7 December 2005;
k) [Lufthansa] from 19 May 2005 until 7 December 2005;
l) [Swiss] from 19 May 2005 until 7 December 2005;
…
Article 4
The following undertakings infringed Article 8 of the [EC-Switzerland Air Transport Agreement] by participating in an infringement that comprised both agreements and concerted practices through which they coordinated various elements of price to be charged for [freight] services on routes between airports within the European Union and airports in Switzerland, for the following periods:
…
f) [Lufthansa Cargo] from 1 June 2002 until 7 December 2005;
g) [Lufthansa] from 1 June 2002 until 7 December 2005;
h) [Swiss] from 1 June 2002 until 7 December 2005;
…
Article 5
For the infringements referred to in Articles 1 to 4 [of the Decision of 9 November 2010], the following fines are imposed:
…
j) [Lufthansa Cargo and Lufthansa] jointly and severally: EUR 0;
k) [Swiss]: EUR 0;
l) [Swiss and Lufthansa] jointly and severally: EUR 0;
…
Article 6
The undertakings listed in Articles 1 to 4 shall immediately bring to an end the infringements referred to in those Articles, in so far as they have not already done so.
They shall refrain from repeating any act or conduct described in Articles 1 to 4, and from any act or conduct having the same or similar object or effect.’
C. The action challenging the Decision of 9 November 2010 before the General Court
15 By application lodged at the General Court Registry on 24 January 2011, the applicants brought an action for annulment of Articles 1 to 4 of the Decision of 9 November 2010 in so far as they concerned them. The other carriers incriminated in the Decision of 9 November 2010, with the exception of Qantas, also brought actions against that decision before the General Court.
16 By judgments of 16 December 2015, Air Canada v Commission (T‑9/11, not published, EU:T:2015:994), Koninklijke Luchtvaart Maatschappij v Commission (T‑28/11, not published, EU:T:2015:995), Japan Airlines v Commission (T‑36/11, not published, EU:T:2015:992), Cathay Pacific Airways v Commission (T‑38/11, not published, EU:T:2015:985), Cargolux Airlines v Commission (T‑39/11, not published, EU:T:2015:991), Latam Airlines Group and Lan Cargo v Commission (T‑40/11, not published, EU:T:2015:986), Singapore Airlines and Singapore Airlines Cargo Pte v Commission (T‑43/11, not published, EU:T:2015:989), Deutsche Lufthansa and Others v Commission (T‑46/11, not published, EU:T:2015:987), British Airways v Commission (T‑48/11, not published, EU:T:2015:988), SAS Cargo Group and Others v Commission (T‑56/11, not published, EU:T:2015:990), Air France-KLM v Commission (T‑62/11, not published, EU:T:2015:996), Air France v Commission (T‑63/11, not published, EU:T:2015:993), and Martinair Holland v Commission (T‑67/11, EU:T:2015:984), the General Court annulled the Decision of 9 November 2010, in whole or in part, in so far as it concerned Air Canada, KLM, Japan Airlines and Japan Airlines Corp., CPA, Cargolux, Latam Airlines Group SA (formerly Lan Airlines) and Lan Cargo, SAC and SIA, the applicants, British Airways, SAS Cargo, SAS Consortium and SAS, AF-KLM, AF and Martinair, respectively. The General Court held that that decision was vitiated by a defective statement of reasons.
17 In that regard, the General Court held, in the first place, that the Decision of 9 November 2010 was vitiated by contradictions between the grounds and the operative part thereof. The grounds of the decision described a single and continuous infringement relating to all routes covered by the cartel, in which all the carriers incriminated in the Decision of 9 November 2010 had participated. By contrast, the operative part of that decision identified either four separate single and continuous infringements, or just one single and continuous infringement, liability for which was attributed to the carriers which, as regards the routes mentioned in Articles 1 to 4 of the decision, participated directly in the unlawful conduct referred to in each of those articles or were aware of the collusion on those routes and accepted the risk. Neither of those two readings of the operative part of the decision in question was consistent with the grounds for the decision.
18 The General Court also rejected as incompatible with the grounds of the Decision of 9 November 2010 the alternative reading of its operative part proposed by the Commission, which was that the failure to mention some of the carriers incriminated in the Decision of 9 November 2010 in Articles 1, 3 and 4 of that decision could be explained by the fact that those carriers did not operate the routes referred to in those articles, and that those articles need not be interpreted as referring to separate single and continuous infringements.
19 In the second place, the General Court held that the grounds of the Decision of 9 November 2010 contained significant internal inconsistencies.
20 In the third place, after noting that neither of the two possible readings of the operative part of the Decision of 9 November 2010 was consistent with the grounds thereof, the General Court considered whether, in the context of at least one of those two possible interpretations, the internal contradictions of that decision were likely to undermine the applicants’ rights of defence and prevent the General Court from conducting its review. As regards the first reading, namely that there were four separate single and continuous infringements, first of all, the General Court held that the applicants had not been in a position to understand to what extent the evidence set out in the grounds and relating to the existence of a single and continuous infringement was liable to establish the existence of the four separate infringements found in the operative part, or to contest the sufficiency of that evidence. Second, it held that the applicants had not been able to understand the line of reasoning that had led the Commission to find them liable for an infringement, including in respect of routes which they did not operate within the parameters defined by each article of the Decision of 9 November 2010.
D. Contested decision
21 On 20 May 2016, following the annulment ordered by the General Court, the Commission sent a letter to the carriers incriminated in the Decision of 9 November 2010 which had brought an action against that decision before the General Court to inform them that its Directorate-General (DG) for Competition intended to propose to it the adoption of a new decision in which it would find that they had participated in a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement on all of the routes referred to in that decision.
22 The addressees of the Commission’s letter referred to in paragraph 21 above were invited to make known their views on the intended decision of the Commission’s DG for Competition within one month. All addressees, including the applicants, availed themselves of that possibility.
23 On 17 March 2017, the Commission adopted Decision C(2017) 1742 final relating to a proceeding under Article 101 [TFEU], Article 53 of the EEA Agreement and Article 8 of the [EC-Switzerland Air Transport Agreement] (Case AT.39258 – Airfreight) (‘the contested decision’). That decision is addressed to 19 carriers (‘the incriminated carriers’), namely:
– Air Canada;
– AF-KLM;
– AF;
– KLM;
– British Airways;
– Cargolux;
– CPA;
– Japan Airlines;
– Latam Airlines Group;
– Lan Cargo;
– Lufthansa Cargo;
– Lufthansa;
– Swiss;
– Martinair;
– SAS;
– SAS Cargo;
– SAS Consortium;
– SAC;
– SIA.
24 In the contested decision, no objections are maintained against the other addressees of the Statement of Objections.
25 The grounds of the contested decision describe a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement, by which the incriminated carriers coordinated their behaviour as regards the pricing of freight services worldwide through the FSC, the SSC and the payment of commission on surcharges.
26 In the first place, in Section 4.1 of the contested decision, the Commission described the ‘basic principles and structure of the cartel’. In recitals 107 and 108 of that decision, the Commission stated that the investigations had uncovered a worldwide cartel based on a network of bilateral and multilateral contacts over a long period of time among competitors regarding the conduct which they had decided on, intended to adopt, or contemplated adopting with regard to various elements of the price of freight services, namely the FSC, the SSC and the refusal to pay commission. It stated that the common objective of that network of contacts was to coordinate competitors’ pricing behaviour or to reduce uncertainty with regard to their pricing policies (‘the cartel at issue’).
27 According to recital 109 of the contested decision, the objective of the coordinated application of the FSC was to ensure that carriers throughout the world impose a flat-rate surcharge per kilo for all relevant shipments. A complex network of mainly bilateral contacts among carriers was established to coordinate and monitor the application of the FSC, the precise date of application often, according to the Commission, being decided at local level usually with the principal local carrier taking the lead and others following. That coordinated approach was extended to the SSC and to the refusal to pay commission, with the result that the latter became net revenue for the carriers and created an additional incentive for them to continue with the coordination relating to surcharges.
28 According to recital 110 of the contested decision, senior management in the head offices of a number of carriers were either directly involved in competitor contacts or regularly informed about them. In the case of the surcharges, responsible head-office employees were in contact with each other when a change to the surcharge level was imminent. The refusal to pay commission was also confirmed on a number of occasions during contacts at head-office level. There were frequent contacts also at local level, partly to better implement the instructions received from the head offices and to adapt them to the local market conditions, partly to coordinate and implement local initiatives. In this latter case the head offices generally authorised or were informed of the proposed action.
29 According to recital 111 of the contested decision, carriers contacted each other bilaterally, in small groups and in some instances in large multilateral forums. Local associations of carrier representatives were used, in particular in Hong Kong and Switzerland, to discuss yield-improvement measures and coordinate surcharges. Meetings of alliances, such as the WOW alliance, were also used for such purposes.
30 In the second place, in Sections 4.3, 4.4 and 4.5 of the contested decision, the Commission described the contacts concerning, respectively, the FSC, the SSC and the refusal to pay commission (‘the contacts at issue’).
31 Thus, first, in recitals 118 to 120 of the contested decision, the Commission summarised the contacts relating to the FSC as follows:
‘(118) A network of bilateral contacts built up from late 1999/early 2000 onwards involving a number of airlines that allowed information sharing concerning the actions of the participants throughout the network. Carriers contacted each other regularly to discuss any question that came up concerning the FSC, including changes to the mechanism, changes [to] the FSC level, consequent application of the mechanism, [and] instances when some airlines did not follow the system.
(119) Concerning the implementation of FSC at local level, a system was often applied whereby leading airlines on particular routes or in certain countries would announce the change first, and they would be followed by others …
(120) Anti-competitive coordination concerning the FSC took place mainly in four contexts: concerning the introduction of FSC in early 2000, the reintroduction of a fuel surcharge mechanism after the revocation of the planned [International Air Transport Association (IATA)] mechanism, the introduction of new trigger points (raising the maximum level of FSC) and most frequently at the point where the fuel indices were approaching the level at which an increase or decrease in the FSC would be triggered.’
32 Second, in recital 579 of the contested decision, the Commission summarised the contacts relating to the SSC as follows:
‘A number of [incriminated carriers] discussed, among [other] issues, their plans whether or not to introduce [an] SSC … Moreover, the amount of the surcharge and the timing of the introduction were also discussed. [The incriminated carriers] furthermore shared with each other ideas concerning the justification to be given to their customers. Ad hoc contacts concerning the implementation of the SSC continued throughout the years 2002-2006. The illicit coordination took place both at head office and local level.’
33 Third, in recital 676 of the contested decision, the Commission stated that the incriminated carriers had ‘continued to refuse [to pay] commission on the surcharges and [had] confirmed their relevant intentions to each other in the framework of numerous contacts’.
34 In the third place, in Section 4.6 of the contested decision, the Commission carried out the assessment of the contacts at issue. The assessment of those relied on against the applicants is set out in recitals 773 to 783 of that decision.
35 In the fourth place, in Section 5 of the contested decision, the Commission applied Article 101 TFEU to the facts of the case, while stating, in footnote No 1289 to that decision, that the considerations adopted also applied to Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement. Thus, first, in recital 846 of that decision, the Commission found that the incriminated carriers had coordinated their conduct or influenced price setting, ‘ultimately amounting to price fixing with regard to’ the FSC, the SSC and the payment of commission on surcharges. In recital 861 of that decision, the Commission described the ‘overall scheme to coordinate the pricing behaviour for [freight] services’, the investigation of which had revealed the existence of a ‘complex infringement consisting of various actions which [could] be either classified as an agreement or concerted practice, within which the competitors knowingly substituted practical cooperation between them for the risks of competition’.
36 Second, in recital 869 of the contested decision, the Commission found that the ‘conduct in question [constituted] a single and continuous infringement of Article 101 of the TFEU’. It thus found that the arrangements at issue pursued a single anticompetitive aim of distorting competition in the freight sector within the EEA, including when coordination took place at local level and experienced local variations (recitals 872 to 876), concerned a ‘single product/service’, namely ‘the provision of [freight] services and the pricing thereof’ (recital 877), concerned the same undertakings (recital 878), were of a single nature (recital 879) and related to three elements, namely the FSC, the SSC and the refusal to pay commission, which were ‘frequently discussed side by side in the same competitor contact’ (recital 880).
37 In recital 881 of the contested decision, the Commission added that ‘the majority of the parties’, including the applicants, were involved in all three elements of the single infringement.
38 Third, in recital 884 of the contested decision, the Commission concluded that the infringement at issue was continuous.
39 Fourth, in recitals 885 to 890 of the contested decision, the Commission examined the relevance of contacts in third countries and of contacts concerning routes which the carriers had never operated or which they could not legally have operated. It considered that, given the worldwide nature of the cartel at issue, those contacts were relevant to establishing the existence of the single and continuous infringement. In particular, it found that the surcharges were measures of general application that were not route-specific but were intended to be applied on all routes, on a worldwide basis, including routes to and from the EEA and Switzerland. It stated that the refusal to pay commission was equally general in nature. In addition, the Commission considered that there were no insurmountable barriers that prevented carriers from providing freight services on routes which they had never operated or which they could not legally operate, in particular because of the agreements which they were able to conclude between themselves.
40 Fifth, in recital 903 of the contested decision, the Commission found that the conduct at issue had the object of restricting competition ‘at least in the [European Union], the EEA and Switzerland’. In recital 917 of that decision, the Commission added, in essence, that there was, therefore, no need to take into account the ‘actual effects’ of that conduct.
41 Sixth, in recitals 922 to 971 of the contested decision, the Commission focussed on the WOW alliance. In recital 971 of that decision, it concluded that:
‘Having regard to the WOW Alliance Agreement and its implementation the Commission finds that the coordination of the surcharges between the WOW [alliance] members was conducted outside the legitimate framework of the alliance that does not justify it. The members were in fact aware that such coordination is illegitimate. Furthermore, they were aware that the coordination of surcharges involved a number of [carriers] not participating in [the WOW alliance]. Consequently, the Commission finds that the evidence concerning contacts between WOW [alliance] members … constitutes evidence of their participation in the infringement of Article 101 of the TFEU as described in this Decision.’
42 Seventh, in recitals 972 to 1021 of the contested decision, the Commission examined the legislation of seven third countries, which several of the incriminated carriers maintained had required them to collude on surcharges, thereby impeding the application of the relevant competition rules. The Commission considered that those carriers had failed to prove that they had acted under duress from those third countries.
43 Eighth, in recitals 1024 to 1035 of the contested decision, the Commission found that the single and continuous infringement was likely to have an appreciable effect on trade between Member States, between contracting parties to the EEA Agreement and between contracting parties to the EC-Switzerland Air Transport Agreement.
44 Ninth, the Commission examined the limits of its territorial and temporal jurisdiction to find and penalise an infringement of the competition rules in the present case. First, in recitals 822 to 832 of the contested decision, under the heading ‘Jurisdiction of the Commission’, the Commission stated, in essence, that it would not apply, first of all, Article 101 TFEU to agreements and practices before 1 May 2004 concerning routes between airports within the European Union and airports outside the EEA (‘EU-third country routes’), next, Article 53 of the EEA Agreement to agreements and practices before 19 May 2005 concerning EU-third country routes and routes between airports in countries that are contracting parties to the EEA Agreement but are not EU Member States and airports in third countries (‘non-EU EEA-third country routes’ and, together with EU-third country routes, ‘EEA-third country routes’) and, lastly, Article 8 of the EC-Switzerland Air Transport Agreement to agreements and practices before 1 June 2002 concerning routes between airports within the European Union and Swiss airports (‘EU-Switzerland routes’). It also stated that the contested decision did ‘not purport to find an infringement of Article 8 of the [EC-Switzerland Air Transport Agreement] concerning freight services on routes between Switzerland and third countries’.
45 Second, in recitals 1036 to 1046 of the contested decision, under the heading ‘The applicability of Article 101 of the TFEU and Article 53 of the EEA Agreement to inbound routes’, the Commission rejected the arguments put forward by the various incriminated carriers that it exceeded the limits of its territorial jurisdiction under the rules of public international law by finding and penalising an infringement of those two provisions on routes from third countries to the EEA (‘inbound routes’ and, as regards the freight services offered on those routes, ‘inbound freight services’). In particular, in recital 1042 of that decision, it recalled the criteria which it considered to be applicable:
‘With respect to the extra-territorial application of Article 101 of the TFEU and Article 53 of the EEA Agreement these provisions are applicable to arrangements that are either implemented within the [European Union] (implementation theory) or that have immediate, substantial and foreseeable effects within the [European Union] (effects theory).’
46 In recitals 1043 to 1046 of the contested decision, the Commission applied the criteria in question to the facts of the present case:
‘(1043) In the case of [inbound freight services], Article 101 of the TFEU and Article 53 of the EEA Agreement are applicable because the service itself that is the subject of the price fixing infringement is to be performed and is indeed performed, in part, within the territory of the EEA. Moreover, many contacts by which the addressees coordinated surcharges and the [refusal to pay] commission took place in the EEA or involved participants in the EEA.
(1044) … the example given in the [Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2008 C 95, p. 1)] is not relevant here. [That notice] relates to the geographic allocation of turnover of undertakings for the purpose of establishing whether the turnover thresholds of Article 1 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings [(OJ 2004 L 24, p. 1)] are met.
(1045) In addition, anticompetitive practices in third countries with regard to … freight transportation to the EU/EEA are liable to have immediate, substantial and foreseeable effects within the EU/EEA, as the increased costs of air transport to the EEA, and consequently higher prices of imported goods, are by their very nature liable to have effects on consumers in the EEA. In this case the anticompetitive practices eliminating competition between carriers offering [inbound freight services] were liable to have such effects also on the provision of [freight] services by other carriers within the EEA, between the different hub airports used by carriers from third countries in the EEA and airports of destination of those shipments in the EEA to which the carrier from the third country does not fly.
(1046) Finally, it has to be underlined that the Commission has found a world-wide cartel. The cartel was implemented globally and the cartel arrangements concerning inbound routes formed an integral part of the single and continuous infringement of Article 101 of the TFEU and Article 53 of the EEA Agreement. The cartel arrangements were in many cases organised centrally and the local personnel were merely implementing them. The uniform application of the surcharges on a world wide scale was a key element of the cartel.’
47 In the fifth place, in recital 1146 of the contested decision, the Commission found that the cartel at issue had started on 7 December 1999 and lasted until 14 February 2006. In the same recital, it stated that that cartel had infringed:
– Article 101 TFEU, from 7 December 1999 to 14 February 2006, as regards air transport between airports within the European Union;
– Article 101 TFEU, from 1 May 2004 to 14 February 2006, as regards air transport on EU-third country routes;
– Article 53 of the EEA Agreement, from 7 December 1999 to 14 February 2006, as regards air transport between airports within the EEA (‘intra-EEA routes’);
– Article 53 of the EEA Agreement, from 19 May 2005 to 14 February 2006, as regards air transport on non-EU EEA-third country routes;
– Article 8 of the EC-Switzerland Air Transport Agreement, from 1 June 2002 to 14 February 2006, as regards air transport on EU-Switzerland routes.
48 In so far as the applicants are concerned, the Commission found that the duration of the infringement was from 14 December 1999 to 7 December 2005, in the case of Lufthansa, and from 2 April 2002 to 7 December 2005, in the case of Swiss.
49 As regards the determination of the fine to be imposed, the Commission stated that Lufthansa had been the first undertaking to inform it about a secret cartel in the freight sector and that, in recognition of its attitude, it was appropriate to grant it immunity from any fines that would otherwise have been imposed on it in the present case.
50 The operative part of the contested decision, in so far as it concerns the present dispute, reads as follows:
‘Article 1
By coordinating their pricing behaviour in the provision of [freight] services on a global basis with respect to the [FSC], the [SSC] and the payment of commission payable on surcharges, the following undertakings have committed the following single and continuous infringement of Article 101 [TFEU], Article 53 of [the EEA Agreement] and Article 8 of [the EC-Switzerland Air Transport Agreement] as regards the following routes and for the following periods.
(1) The following undertakings have infringed Article 101 of the TFEU and Article 53 of [the] EEA Agreement as regards [intra-EEA] routes, for the following periods:
…
(k) [Lufthansa Cargo] from 14 December 1999 until 7 December 2005;
(l) [Lufthansa] from 14 December 1999 until 7 December 2005;
(m) [Swiss] from 2 April 2002 until 7 December 2005;
…
(2) The following undertakings infringed Article 101 of the TFEU as regards [EU-third country] routes, for the following periods:
…
(k) [Lufthansa Cargo] from 1 May 2004 until 7 December 2005;
(l) [Lufthansa] from 1 May 2004 until 7 December 2005;
(m) [Swiss] from 1 May 2004 until 7 December 2005;
…
(3) The following undertakings infringed Article 53 of the EEA Agreement as regards [non-EU EEA-third country] routes, for the following periods:
…
(k) [Lufthansa Cargo] from 19 May 2005 until 7 December 2005;
(l) [Lufthansa] from 19 May 2005 until 7 December 2005;
(m) [Swiss] from 19 May 2005 until 7 December 2005;
…
(4) The following undertakings infringed Article 8 of the [EC-Switzerland Air Transport Agreement] as regards [EU-Switzerland] routes, for the following periods:
…
(k) [Lufthansa Cargo] from 1 June 2002 until 7 December 2005;
(l) [Lufthansa] from 1 June 2002 until 7 December 2005;
(m) [Swiss] from 1 June 2002 until 7 December 2005;
…
Article 2
[The Decision of 9 November 2010] is amended as follows:
In Article 5, points (j), (k) and (l) are repealed.
Article 3
For the single and continuous infringement referred to in Article 1 (and as regards British Airways … also for the aspects of Articles 1 to 4 of [the Decision of 9 November 2010] that have become final), the following fines are imposed:
…
(j) [Lufthansa Cargo] and [Lufthansa] jointly and severally: EUR 0;
(k) [Swiss]: EUR 0;
(l) [Swiss and Lufthansa] jointly and severally: EUR 0;
…
Article 4
The undertakings listed in Article 1 shall immediately bring to an end the single and continuous infringement referred to in that article in so far as they have not already done so.
They shall also refrain from repeating any act or conduct having the same or similar object or effect.
Article 5
This Decision is addressed to
…
[Lufthansa Cargo]
…
[Lufthansa]
…
[Swiss]
…’
II. Procedure and forms of order sought
51 By application lodged at the Court Registry on 30 May 2017, the applicants brought the present action.
52 The Commission lodged its defence at the Court Registry on 29 September 2017.
53 The applicants lodged their reply at the Court Registry on 30 November 2017.
54 The Commission lodged its rejoinder at the Court Registry on 1 March 2018.
55 On 24 April 2019, on a proposal from the Fourth Chamber, the General Court decided, pursuant to Article 28 of its Rules of Procedure, to assign the present case to a chamber sitting in extended composition.
56 On 21 June 2019, in the context of the measures of organisation of procedure laid down in Article 89 of the Rules of Procedure, the General Court put written questions to the parties. The parties replied within the prescribed period.
57 At the hearing on 9 July 2019, the parties presented oral argument and answered the questions put by the General Court.
58 By order of 31 July 2020, the General Court (Fourth Chamber, Extended Composition), considering that it lacked sufficient information and that it was necessary to invite the parties to submit their observations on an argument which had not been debated between them, ordered the reopening of the oral part of the procedure pursuant to Article 113 of the Rules of Procedure.
59 The parties replied within the prescribed period to a series of questions put by the General Court on 4 August 2020, and then submitted observations on their respective replies.
60 By decision of 28 September 2020, the General Court again closed the oral part of the procedure.
61 The applicants claim that the Court should:
– annul Article 1 of the contested decision;
– order the Commission to pay the costs.
62 The Commission contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
III. Law
63 In the application, the applicants state that they are putting forward five pleas in law, alleging, first, infringement of the obligation to state reasons in connection with the ambiguity in the definition of the geographic scope of the single and continuous infringement; second, infringement of Article 11 of the EC-Switzerland Air Transport Agreement and failure to observe the principle of international comity; third, improper retroactive application of Regulation No 1/2003; fourth, infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement, in connection with a misapplication of the concept of a single and continuous infringement; and, fifth, infringement of Article 101 TFEU and Article 53 of the EEA Agreement, to the extent that the contested decision analyses contacts which occurred outside both the EEA and Switzerland (‘the non-EEA/Swiss contacts’) as independent infringements.
64 In that regard, it should be noted that, although the parties determine the subject matter of the dispute, which cannot be modified by the EU judicature, the Court must interpret the pleas in law by reference to their substance rather than their characterisation and thus characterise the pleas in law and the arguments in the application (see judgment of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 51 and the case-law cited).
65 It is apparent from the examination of the substance of the applicants’ written submissions that the second and third pleas put forward in the application largely overlap in that they both concern the taking into account of contacts at issue which allegedly fell outside the Commission’s jurisdiction. As regards the fifth plea put forward in the application, it should be noted that it contains three separate parts, some of which are only tenuously linked. Those parts concern, first, the lack of jurisdiction on the part of the Commission to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes; second, errors in the assessment of the effect on trade between Member States; and, third, errors in the assessment of the State coercion to which the applicants were subject in a number of third countries.
66 In those circumstances, in the interests of the proper administration of justice, the General Court takes the view that it is necessary to conclude that the applicants raise, in essence, six pleas in law, alleging:
– first, infringement of the obligation to state reasons in connection with the ambiguity in the definition of the geographic scope of the single and continuous infringement (first plea in the application);
– second, infringement of Article 11(2) of the EC-Switzerland Air Transport Agreement and failure to observe the principle of international comity and of the principle of non-retroactivity of criminal laws (second and third pleas in the application);
– third, infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement, in connection with a misapplication of the concept of a single and continuous infringement (fourth plea in the application);
– fourth, lack of jurisdiction on the part of the Commission to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes (first part of the fifth plea in the application);
– fifth, incorrect assessment of the effect on trade between Member States (second part of the fifth plea in the application);
– sixth, errors in the assessment of the State coercion to which the applicants were subject in a number of third countries (third part of the fifth plea in the application).
67 The General Court considers it appropriate to examine, first of all the first plea; then, the fourth plea; then, the plea raised by the General Court of its own motion, alleging lack of jurisdiction on the part of the Commission in the light of the EC-Switzerland Air Transport Agreement to find and penalise an infringement of Article 53 of the EEA Agreement on routes between airports in countries that are contracting parties to the EEA Agreement but are not EU Member States and airports in Switzerland (‘non-EU EEA-Switzerland routes’); and, lastly, the second, third, fifth and sixth pleas in law in turn.
A. The first plea, alleging infringement of the obligation to state reasons
68 The applicants submit, in essence, that Article 1 of the contested decision is vitiated by a defective statement of reasons in connection with the ambiguity in the definition of the geographic scope of the single and continuous infringement. It is apparent from the introductory paragraph of that article that the incriminated carriers coordinated their pricing behaviour in the provision of freight services ‘on a global basis’. Conversely, Article 1(a) to (d) of the contested decision appears to limit the formal finding of an infringement to specific periods of time and to a number of specific routes – all of which, in the applicants’ view, have a nexus to the EEA – without, however, giving details of the conduct constituting the various infringements at issue.
69 The applicants argue that the reasoning in the contested decision does not help to resolve that ambiguity. The contested decision thus contains numerous references to the worldwide nature of the infringement. In particular, recital 1210 of the contested decision, which is not affected by an obvious clerical error, states that ‘the geographic scope of the infringement was worldwide’. Conversely, the contested decision also describes an infringement the aim of which was to distort competition in the freight sector in the European Union, the EEA and Switzerland. The Statement of Objections and the summary of the contested decision proposed by the Commission also confine themselves to describing an infringement covering the territory of the EEA and Switzerland.
70 The applicants submit that, since the Commission has never used, even in similar circumstances, the expression ‘on a global basis’ in its previous practice followed in taking decisions, it is all the more difficult to understand whether the introductory sentence is meant to form part of the formal finding of a single and continuous infringement or ought to be regarded merely as inadequate wording that is better suited to the grounds of the contested decision than to the operative part thereof.
71 The applicants argue that the possible factual nature of the reference to the global scope of the cartel at issue in the introductory sentence of Article 1 of the contested decision is of no assistance to the Commission. The facts come under the grounds of the decision and not under the operative part thereof. That is particularly so because the operative part of a decision finding that there is a cartel should be particularly clear and precise in view of the possibility of actions for damages being brought before national courts.
72 The applicants argue that the ambiguity at issue places them in an untenable position of legal uncertainty and undermines their rights of defence. To interpret Article 1 of the contested decision as referring to a worldwide infringement could be highly detrimental to the applicants in the context of an action for damages. Conversely, to interpret Article 1 of the contested decision more narrowly would expose the applicants to the risk that a national court hearing such an action might adopt a different view.
73 In their reply, the applicants add, in essence, that, if it is held that the single and continuous infringement is not one of global scope, it might be sufficient to annul Article 1 of the contested decision to the extent that it refers to the existence of coordination ‘on a global basis’.
74 The Commission disputes the applicants’ arguments.
75 In that regard, it should be recalled that the principle of effective judicial protection is a general principle of EU law now enshrined in Article 47 of the Charter of Fundamental Rights of the European Union. That principle, which corresponds, in EU law, to Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, requires that the operative part of a decision by which the Commission finds infringements of the competition rules must be particularly clear and precise and that the undertakings held liable and penalised must be in a position to understand and to contest the imputation of that liability and the imposition of those penalties, as set out in the wording of that operative part (see judgment of 16 December 2015, Martinair Holland v Commission, T‑67/11, EU:T:2015:984, paragraph 31 and the case-law cited).
76 It is in the operative part of its decisions that the Commission must indicate the nature and extent of the infringements which it penalises. As regards in particular the scope and nature of the infringements penalised, it is thus in principle the operative part, and not the statement of reasons, which is important. Only where there is a lack of clarity in the terms used in the operative part should reference be made, for the purposes of interpretation, to the statement of reasons contained in a decision (see judgment of 16 December 2015, Martinair Holland v Commission, T‑67/11, EU:T:2015:984, paragraph 32 and the case-law cited).
77 In the present case, it must be noted at the outset that, contrary to what the applicants claim, the Commission did not conclude, in the operative part of the contested decision, that there was a worldwide infringement. The reference to the coordination of the conduct of the incriminated carriers as regards ‘pricing behaviour in the provision of … freight services on a global basis’ in the introductory paragraph of Article 1 of that decision is merely a statement of fact that the Commission characterised, in paragraphs 1 to 4 of that article, as an infringement of the competition rules applicable on routes which it regarded as falling within the scope of its jurisdiction during the periods in question. These were intra-EEA routes between 7 December 1999 and 14 February 2006 (Article 1(1)), EU-third country routes between 1 May 2004 and 14 February 2006 (Article 1(2)), non-EU EEA-third country routes between 19 May 2005 and 14 February 2006 (Article 1(3)) and EU-Switzerland routes between 1 June 2002 and 14 February 2006 (Article 1(4)).
78 It follows that the operative part of the contested decision is not vitiated by a contradiction or by a lack of clarity or precision.
79 Since the operative part of the contested decision leaves no room for doubt, it is therefore solely for the sake of completeness that the General Court adds that the grounds of the contested decision support that finding. Those grounds thus refer, first, to an infringement of the applicable competition rules the geographic scope of which is limited to specific types of route (recitals 1146 and 1187) and, second, to a ‘worldwide cartel’ (recitals 74, 112, 832 and 1300), ‘worldwide nature’ (recital 887) or ‘implemented globally’ (recital 1046).
80 Recital 1210 of the contested decision does, admittedly, deviate from the rule, in that it refers to ‘the geographic scope of the infringement [which] was worldwide’. However, it must be stated that the context of that isolated reference to a worldwide infringement tends to show that it is a mere clerical error and should read ‘the geographic scope of the cartel [at issue] was worldwide’. That reference is followed by the following sentences:
‘For the purposes of establishing the gravity of the infringement, this means that the cartel [at issue] covered the whole of the EEA and Switzerland. That includes airfreight services … on routes in both directions between airports within the EEA, on routes between airports in countries within the [European Union] and airports outside the EEA, on routes between airports in the [European Union] and airports in Switzerland and on routes between airports in the EEA Contracting Parties not being Member States and airports in third countries.’
81 Consequently, far from being inconsistent with the statement of reasons for the contested decision, the finding of the existence of rates coordination for the provision of freight services worldwide reflects the position expressed by the Commission, throughout the contested decision, on the geographic scope of the cartel at issue.
82 The present plea must therefore be rejected.
B. The fourth plea, alleging lack of jurisdiction on the part of the Commission to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes
83 The applicants submit, in essence, that the Commission lacked jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services, which the Commission disputes.
84 It should be borne in mind that, as regards conduct adopted outside the territory of the EEA, the Commission’s jurisdiction under public international law to find and punish an infringement of Article 101 TFEU or Article 53 of the EEA Agreement may be established on the basis of the implementation test or, as the applicants agreed at the hearing, the qualified effects test (see, to that effect, judgments of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 40 to 47, and of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraphs 95 to 97).
85 Those tests are alternative and not cumulative (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 98; see also, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 62 to 64).
86 In recitals 1043 to 1046 of the contested decision, the Commission, as the applicants essentially acknowledge, relied on both the implementation test and the qualified effects test in order to establish its jurisdiction under public international law to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes.
87 Since the applicants allege an error in the application of each of those two tests, the General Court considers it appropriate to examine, first of all, whether the Commission was entitled to avail itself of the qualified effects test. In accordance with the case-law cited in paragraph 85 above, it is only in the negative that it will be necessary to ascertain whether the Commission was entitled to rely on the implementation test.
88 The applicants submit that the Commission erred in concluding that the non-EEA/Swiss contacts as regards inbound freight services were liable to have immediate, substantial and foreseeable effects on the territory of the internal market or within the EEA. The applicants raise, in essence, two complaints in support of their argument.
89 In the first place, the applicants submit that the Commission has not shown that the coordination relating to inbound freight services could have had direct effects within the internal market. On the contrary, recital 917 of the contested decision states that the Commission ‘makes no assessment of anti-competitive effects’. Moreover, the Commission acknowledges that its case is based purely on a restriction by object.
90 The applicants submit that the Commission’s argument, set out in recital 1045 of the contested decision, that the coordination relating to inbound freight services could have led to a significant increase in air transport costs, is unfounded and fails to show how EU consumers might have been affected in an immediate, substantial and foreseeable manner. The Commission failed to consider whether any increase in surcharges was offset by a decrease in freight rates as a result of a ‘waterbed effect’. A detailed analysis would have shown that the effect on EEA consumers is ‘indirect-indirect’ in that it is the result of two levels of ‘passing-on’. Next, the Commission has not provided any comprehensible explanation as to how the coordination relating to inbound freight services could have affected competition between carriers within the EEA. The Commission also relies on the unsupported allegation that the case at hand involves practices eliminating any form of competition between carriers offering inbound freight services. Lastly, any increase in the price of imported goods resulting from an increase in air transport costs would be an economic harm, and not a restriction of competition.
91 In addition, in their reply, the applicants submit that the Commission could not base its jurisdiction on Council Regulation (EC) No 411/2004 of 26 February 2004 repealing Regulation (EEC) No 3975/87 and amending Regulations (EEC) No 3976/87 and (EC) No 1/2003, in connection with air transport between the Community and third countries (OJ 2004 L 68, p. 1). However, they withdrew that argument at the hearing, a formal note of which was made in the minutes of the hearing.
92 In the second place, still at the reply stage, the applicants add that the Commission cannot rely on the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632, paragraph 50), to support its claim that it had jurisdiction under the qualified effects test solely on the ground that the coordination relating to inbound freight services formed an integral part of the single and continuous infringement. In particular, the restriction of competition took place solely at the point of sale, namely outside the EEA. In addition, the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632, paragraph 50), relates to a case of application of Article 102 TFEU and concerned practices the anticompetitive effect of which was the maintenance or increase of market power on the part of a dominant undertaking in the European Union. In such a case, there is a common objective that creates a link between the entirety of the infringing conduct and the anticompetitive effect. Conversely, in a case of application of Article 101 TFEU, such as the present case, the single infringement is based on a common objective and associative links.
93 The Commission disputes the applicants’ arguments.
94 In the contested decision, the Commission relied, in essence, on three separate grounds in order to find that the qualified effects test was satisfied in the present case.
95 The first two grounds are set out in recital 1045 of the contested decision. As the Commission confirmed in reply to the written and oral questions put by the General Court, those grounds concern the effects of coordination in relation to inbound freight services taken in isolation. The first ground is that the ‘increased costs of air transport to the EEA, and consequently higher prices of imported goods, [were] by their very nature liable to have effects on consumers in the EEA’. The second ground concerns the effects of coordination in relation to inbound freight services ‘also on the provision of [freight] services by other carriers within the EEA, between the different hub airports used by carriers from third countries in the EEA and airports of destination of those shipments in the EEA to which the carrier from the third country does not fly’.
96 The third ground is set out in recital 1046 of the contested decision and concerns, as is apparent from the Commission’s answers to the written and oral questions put by the General Court, the effects of the single and continuous infringement taken as a whole.
97 The General Court considers it appropriate to examine both the effects of coordination in relation to inbound freight services taken in isolation and those of the single and continuous infringement taken as a whole, starting with the former.
1. The effects of coordination in relation to inbound freight services taken in isolation
98 It is appropriate to examine, first of all, the merits of the first ground on which the Commission’s conclusion that the qualified effects test is satisfied in the present case (‘the effect at issue’) is based.
99 In that connection, it should be observed at the outset that that examination must be carried out in the light of all the contacts relating to inbound freight services and not, as the applicants’ written submissions might suggest, only of the non-EEA/Swiss contacts. First, it is apparent from the case-law that the location of a contact is not decisive for the purposes of applying Article 101 TFEU and Article 53 of the EEA Agreement (see, to that effect, judgment of 27 September 1988, Ahlström Osakeyhtiö and Others v Commission, 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85, EU:C:1988:447, paragraph 16). Second, there is no reason to take the view that inbound freight services can be discussed only outside the EEA or Switzerland.
100 That said, it should be recalled that, as is apparent from recital 1042 of the contested decision, the qualified effects test allows the application of the EU and EEA competition rules to be justified under public international law when it is foreseeable that the conduct at issue will have an immediate and substantial effect in the internal market or within the EEA (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 49; see also, to that effect, judgment of 25 March 1999, Gencor v Commission, T‑102/96, EU:T:1999:65, paragraph 90).
101 In the present case, the applicants dispute the relevance of the effect at issue (see paragraphs 102 to 121 below), its foreseeability (see paragraphs 123 to 139 below), its substantiality (see paragraphs 140 to 150 below) and its immediacy (see paragraphs 151 to 162 below).
(a) The relevance of the effect at issue
102 It is apparent from the case-law that the fact that an undertaking participating in an agreement or a concerted practice is situated in a third country does not prevent the application of Article 101 TFEU and Article 53 of the EEA Agreement, if that agreement or practice is operative, respectively, in the internal market or within the EEA (see, to that effect, judgment of 25 November 1971, Béguelin Import, 22/71, EU:C:1971:113, paragraph 11).
103 The purpose of applying the qualified effects test is precisely to prevent conduct which, while not adopted on the territory of the EEA, has anticompetitive effects liable to have an impact in the internal market or within the EEA (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 45).
104 That test does not require it to be established that the conduct at issue ‘did in fact have any impact’ on the market or on competition. On the contrary, according to the case-law and as the applicants agreed, moreover, in their reply, it is sufficient to take account of the probable effects of that conduct on competition in that market or within that territory (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 51).
105 It is for the Commission to ensure the protection of competition in the internal market or within the EEA against threats to its effective functioning.
106 Where conduct has been found by the Commission, as in the present case, to reveal a degree of harmfulness to competition in the internal market or within the EEA such that it could be classified as a restriction of competition ‘by object’ within the meaning of Article 101 TFEU and Article 53 of the EEA Agreement, the application of the qualified effects test also cannot require the demonstration of the actual effects which presupposes the classification of conduct as a restriction of competition ‘by effect’ within the meaning of those provisions.
107 In that connection, it should be recalled that the qualified effects test is enshrined in the wording of Article 101 TFEU and Article 53 of the EEA Agreement, which are intended to prevent agreements and practices which limit competition in the internal market and within the EEA, respectively. Those provisions prohibit agreements and practices of undertakings which have as their object or effect the prevention, restriction or distortion of competition ‘within the internal market’ and ‘within the territory covered by [the EEA Agreement]’, respectively (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 42).
108 It is settled case-law that the anticompetitive object and effect are not cumulative conditions, but alternative conditions for assessing whether conduct falls within the prohibitions laid down in Article 101 TFEU and Article 53 of the EEA Agreement (see, to that effect, judgment of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 28 and the case-law cited).
109 It follows therefrom that, as the Commission observed in recital 917 of the contested decision, there is no need to take account of the actual effects of the conduct at issue once its anticompetitive object has been established (see, to that effect, judgments of 13 July 1966, Consten and Grundig v Commission, 56/64 and 58/64, EU:C:1966:41, p. 342, and of 6 October 2009, GlaxoSmithKline Services and Others v Commission and Others, C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, EU:C:2009:610, paragraph 55).
110 In those circumstances, interpreting the qualified effects test, as the applicants appear to advocate, as requiring proof of the actual effects of the conduct at issue even where there is a restriction of competition ‘by object’, would amount to making the Commission’s jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement subject to a condition which has no basis in the wording of those provisions.
111 The applicants cannot therefore validly claim that the Commission erred in finding that the qualified effects test was satisfied, even though it stated, in recitals 917, 1190 and 1277 of the contested decision, that it was not required to make an assessment of the anticompetitive effects of the conduct at issue in the light of the anticompetitive object of that conduct. The applicants also cannot deduce from those recitals that the Commission did not carry out any analysis of the effects produced by that conduct in the internal market or within the EEA for the purposes of applying that test.
112 In recital 1045 of the contested decision, the Commission considered, in essence, that the single and continuous infringement, in so far as it related to inbound routes, was liable to increase the amount of the surcharges and, consequently, the total price of inbound freight services and that freight forwarders had passed on that additional cost to shippers based in the EEA, who had had to pay a higher price for the goods they had purchased than would have been charged in the absence of that infringement.
113 The applicants have failed to show that the additional cost which shippers might have had to pay and the higher prices of the goods imported into the EEA which might have resulted were not among the effects on which the Commission was entitled to rely for the purposes of applying the qualified effects test. The applicants are incorrect in claiming that the conduct at issue, in so far as it related to inbound routes, was not capable of restricting competition in the EEA, on the ground that that conduct only took place in third countries where the freight forwarders who sourced inbound freight services from the incriminated carriers are established.
114 In that regard it should be noted that the qualified effects test must be applied in the light of the economic and legal context of the conduct at issue (see, to that effect, judgment of 25 November 1971, Béguelin Import, 22/71, EU:C:1971:113, paragraph 13).
115 In the present case, it is apparent from recitals 14, 17 and 70 of the contested decision and from the parties’ replies to the measures of organisation of procedure of the General Court that the carriers sell their freight services exclusively or almost exclusively to freight forwarders.
116 As regards inbound freight services, almost all those sales take place at the point of origin of the routes in question, outside the EEA, where those freight forwarders are established. It is apparent from the oral replies of the applicants to the written questions put by the General Court that, between 2004 and 2005, they made only a negligible proportion of their sales of inbound freight services to customers based in the EEA.
117 It must, however, be observed that, although freight forwarders purchase those services, they do so in particular as intermediaries, in order to consolidate them into a package of services, the purpose of which is, by definition, to organise the integrated transport of goods to the territory of the EEA on behalf of shippers. As is apparent from recital 70 of the contested decision, the latter may in particular be the purchasers or owners of the goods transported. It is therefore at the very least likely that they are established in the EEA.
118 It follows that, provided that the freight forwarders pass any additional costs resulting from the cartel at issue on to the price of their service packages, it is in particular on competition that occurs between freight forwarders in order to attract those shippers as customers that the effects of the single and continuous infringement, in so far as it concerns inbound routes, are liable to be felt and, consequently, in the internal market or within the EEA that they are liable to materialise.
119 Consequently, the additional cost which shippers might have had to pay and the higher prices of the goods imported into the EEA which may have resulted are among the effects produced by the conduct at issue on which the Commission was entitled to rely for the purposes of applying the qualified effects test.
120 That conclusion is not called into question by the argument, put forward for the first time at the hearing, that considering the effect at issue relevant for the purposes of the application of the qualified effects test could lead to conflicts of jurisdiction. In support of that argument, the applicants cite the example of a cartel between Chinese dye manufacturers, which sell their products to textile manufacturers in China, which pass the additional cost on to their customers in Europe. According to the applicants, that example raises an issue of extraterritoriality and, in those circumstances, it is the Chinese competition authority which must deal with the matter.
121 In that regard, it is sufficient to recall that there is no principle of public international law that prevents the public authorities of different States from trying and convicting the same natural or legal person on the basis of the same facts as those for which that person has already been tried in another State (judgment of 29 June 2006, Showa Denko v Commission, C‑289/04 P, EU:C:2006:431, paragraph 58).
122 In accordance with the case-law cited in paragraph 100 above, the question is therefore whether the effect at issue has the required foreseeability, substantiality and immediacy.
(b) The foreseeability of the effect at issue
123 The requirement of foreseeability seeks to ensure legal certainty by guaranteeing that the undertakings concerned may not be penalised on account of effects which might indeed result from their conduct but which they could not reasonably expect to occur (see, to that effect, Opinion of Advocate General Kokott in Otis Gesellschaft and Others, C‑435/18, EU:C:2019:651, point 83).
124 The occurrence of effects which the members of the cartel at issue ought reasonably to take into consideration on the basis of practical experience thus satisfy the requirement of foreseeability, unlike effects which result from an entirely extraordinary train of events and, therefore, ensue via an atypical causal chain (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C‑557/12, EU:C:2014:45, point 42).
125 It is apparent from recitals 846, 909, 1199 and 1208 of the contested decision that what is at issue in the present case is collusive horizontal-pricing behaviour, experience of which shows that it leads inter alia to price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers (see, to that effect, judgment of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 51).
126 It is also apparent from recitals 846, 909, 1199 and 1208 of the contested decision that the conduct related to the FSC, the SSC and the refusal to pay commission.
127 In the present case, it was therefore foreseeable for the incriminated carriers that the horizontal fixing of the FSC and the SSC would lead to an increase in the level of the FSC and the SSC. As is apparent from recitals 874, 879 and 899 of the contested decision, the refusal to pay commission was liable to reinforce such an increase. It amounted to a concerted refusal to grant freight forwarders discounts on surcharges, by which the incriminated carriers ‘ensured that pricing uncertainty, which could have arisen from competition on commission payments [in the context of negotiations with freight forwarders], remained suppressed’ (recital 874 of that decision) and thus aimed to eliminate competition in respect of surcharges (recital 879 of that decision).
128 It is apparent from recital 17 of the contested decision that the price of freight services is made up of rates and surcharges, including the FSC and the SSC. Unless it were considered that an increase in the FSC and the SSC would, as a result of a sufficiently probable ‘waterbed effect’, be offset by a corresponding reduction in rates and other surcharges, such an increase was, in principle, liable to lead to an increase in the total price of inbound freight services. The applicants have failed to establish that a ‘waterbed effect’ was so probable as to render the effect at issue unforeseeable. They have thus failed to produce the opinions of economic experts that they referred to in support of their arguments at the hearing, merely stating that the Commission found that, in the case of a restriction of competition ‘by object’, it was not necessary to examine the arguments seeking to prove the existence of such an effect.
129 It is true that, in recital 1190 of the contested decision, the Commission stated that arguments had been raised during the administrative procedure for the purpose of demonstrating that ‘there was no impact on the overall price as increases in surcharges were compensated by decreases in other component elements of the price’. It is also true that the Commission rejected those arguments on the ground that they went to the issue of the lack of effect of the single and continuous infringement when its case had been based purely on a restriction ‘by object’. It should nonetheless be noted that applicants have not demonstrated that those arguments, which concerned the determination of the value of sales when setting the amount of the fine, sought to demonstrate that the relevant economic and legal context was such that it was sufficiently probable for the incriminated carriers that a ‘waterbed effect’ would occur, rendering the effect at issue unforeseeable.
130 In those circumstances and despite the applicants’ ‘categorical’ but entirely unsubstantiated denials, it must be noted that the members of the cartel at issue could reasonably have foreseen that the effect of the single and continuous infringement, in so far as it concerned inbound freight services, would be an increase in the price of freight services on inbound routes.
131 The question is therefore whether it was foreseeable for the incriminated carriers that freight forwarders would pass on such additional costs to their own customers, namely shippers.
132 In that regard, it is apparent from recitals 14 and 70 of the contested decision that the price of freight services constitutes an input for freight forwarders. It is a variable cost, the increase in which, in principle, has the effect of increasing the marginal cost in relation to which the freight forwarders determine their own prices.
133 The applicants do not put forward any evidence demonstrating that the circumstances of the present case were not conducive to passing on the additional costs resulting from the single and continuous infringement on inbound routes to shippers downstream.
134 In those circumstances, it was reasonably foreseeable for the incriminated carriers that freight forwarders would pass on such additional costs to shippers through an increase in the price of freight-forwarding services.
135 As is apparent from recitals 70 and 1031 of the contested decision, the cost of goods the integrated transportation of which is generally organised by freight forwarders on behalf of shippers incorporates the price of freight-forwarding services, and in particular the cost of freight services which are a constituent element thereof.
136 In the light of the foregoing, it was therefore foreseeable for the incriminated carriers that the single and continuous infringement would, in so far as it related to inbound routes, have the effect of increasing the price of imported goods.
137 For the reasons set out in paragraph 117 above, it was equally foreseeable for the incriminated carriers that, as is apparent from recital 1045 of the contested decision, that effect would occur in the EEA.
138 Since the effect at issue had revealed the normal course of events and economic rationale, it was not, contrary to what the applicants maintained at the hearing, in any way necessary for the applicants to know what the freight forwarders do in relation to customers in order to be able to foresee it.
139 It must therefore be concluded that the Commission has established to the requisite standard that the effect at issue had the required foreseeability.
(c) The substantiality of the effect at issue
140 The assessment of whether effects produced by the conduct at issue are substantial must be carried out in the light of all the relevant circumstances of the case. Those circumstances include, inter alia, the duration, nature and scope of the infringement. Other circumstances, such as the size of the undertakings which participated in that conduct, may also be relevant (see, to that effect, judgments of 9 September 2015, Toshiba v Commission, T‑104/13, EU:T:2015:610, paragraph 159, and of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 112).
141 Where the effect under consideration relates to an increase in the price of a finished product or service derived from or containing the cartelised service, the proportion of the price of the finished product or service represented by the cartelised service may also be taken into account.
142 In the present case, in the light of all the relevant circumstances, it must be held that the effect at issue, relating to the increase in the price of goods imported into the EEA, is substantial.
143 In the first place, it is apparent from recital 1146 of the contested decision that the duration of the single and continuous infringement amounts to 21 months in so far as it concerned EU-third country routes, and eight months in so far as it concerned non-EU EEA-third country routes. It is apparent from recitals 1215 and 1217 of that decision that this is also the duration of all the incriminated carriers’ participation, with the exception of the applicants.
144 In the second place, as regards the scope of the infringement, it is apparent from recital 889 of the contested decision that the FSC and the SSC were ‘measures of general application that [were] not route specific’ and ‘were intended to be applied on all routes, on a worldwide basis, including routes to … the EEA’.
145 In the third place, as regards the nature of the infringement, it is apparent from recital 1030 of the contested decision that the object of the single and continuous infringement was to restrict competition between the incriminated carriers, inter alia on EEA-third country routes. In recital 1208 of that decision, the Commission concluded that the ‘fixing of various elements of the price, including particular surcharges, constitute[d] one of the most harmful restrictions of competition’ and therefore found that the single and continuous infringement merited the application of a gravity factor ‘at the higher end of the scale’ provided for in 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).
146 For the sake of completeness, as regards the proportion of the price of the cartelised service in the product or service which is derived from it or contains it, it should be noted that, contrary to what the applicants submit, during the infringement period the surcharges represented a significant proportion of the total price of freight services.
147 It is thus apparent from a letter of 8 July 2005 from the Hong Kong Association of Freight Forwarding & Logistics to the Chairman of the Cargo Sub-Committee (‘the CSC’) of the Board of Airline Representatives (‘the BAR’) in Hong Kong that the surcharges represent a ‘very significant part’ of the total price of the air waybills which the freight forwarders had to pay.
148 As is apparent from recital 1031 of the contested decision, the price of freight services was itself a ‘significant cost element of the goods transported that has an impact on their sale’.
149 Again for the sake of completeness, as regards the size of the undertakings that participated in the conduct at issue, it is apparent from recital 1209 of the contested decision that the combined market share of the incriminated carriers on the ‘worldwide market’ was 34% in 2005 and was ‘at least as high’ for freight services provided on EEA-third country routes, which included both routes from the EEA to third countries (‘outbound routes’) and inbound routes.
150 It must therefore be concluded that the Commission has established to the requisite standard that the effect at issue had the required substantiality.
(d) The immediacy of the effect at issue
151 The requirement of immediacy of the effects produced by the conduct at issue relates to the causal link between the conduct at issue and the effect under consideration. The purpose of that requirement is to ensure that the Commission cannot, in order to justify its jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement, rely on all the possible effects, however remote, for which that conduct might have been the cause in the sense of a conditio sine qua non (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C‑557/12, EU:C:2014:45, points 33 and 34).
152 The direct causal link must not, however, be regarded as being the same as a single causal link, which would mean always finding as a matter of course that the chain of causality is broken where the action of a third party was a contributory cause of the effects at issue (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C‑557/12, EU:C:2014:45, points 36 and 37).
153 In the present case, the intervention of freight forwarders in respect of which it was foreseeable that, with complete independence, they would pass on to shippers the additional costs that they had had to pay is indeed capable of having contributed to the occurrence of the effect at issue. However, contrary to what the applicants essentially submit, that intervention was not, in itself, such as to break the causal chain between the conduct at issue and that effect and thus deprive it of its immediacy.
154 On the contrary, where it is not wrongful, but objectively results from the cartel at issue, in accordance with the normal functioning of the market, such an intervention does not break the causal chain (see, to that effect, judgment of 14 December 2005, CD Cartondruck v Council and Commission, T‑320/00, not published, EU:T:2005:452, paragraphs 172 to 182), but continues it (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C‑557/12, EU:C:2014:45, point 37).
155 In the present case, the applicants have not established, or even alleged, that the foreseeable passing on of the additional costs to shippers located in the EEA is wrongful or extraneous to the normal functioning of the market.
156 It follows that the effect at issue has the required immediacy.
157 None of the applicants’ arguments is capable of calling that conclusion into question.
158 It should thus be noted that the applicants are not justified in relying on the judgment of 27 February 2014, InnoLux v Commission (T‑91/11, EU:T:2014:92). Paragraph 53 of that judgment, to which the applicants refer, concerned the question whether the Commission had used the investigation that it had carried out into an input product in order to make a finding of infringement in respect of finished products in which it was incorporated. However, that is not the case here, with the Commission having confined itself to finding an infringement in relation to freight services.
159 As regards paragraph 57 of the judgment of 27 February 2014, InnoLux v Commission (T‑91/11, EU:T:2014:92), to which the applicants also refer, it merely states that ‘it is first of all appropriate to recall the principles laid down by the case-law so far as concerns the Commission’s territorial jurisdiction to find infringements of competition law’. The ensuing paragraphs mention the qualified effects test at issue in the present plea only in order to find that that test does not call into question the implementation test, the application of which is not at issue in this part of the present plea (judgment of 27 February 2014, InnoLux v Commission, T‑91/11, EU:T:2014:92, paragraphs 61 to 63).
160 The judgment of 9 September 2015, Toshiba v Commission (T‑104/13, EU:T:2015:610), to which the applicants also refer, also does not support their arguments. In the case giving rise to that judgment, the Commission found that several undertakings had infringed Article 101 TFEU and Article 53 of the EEA Agreement by colluding on the two types of cathode ray tubes that existed at the time, namely colour display tubes for computer monitors and colour picture tubes for television sets. In paragraph 159 of that judgment, the General Court held as follows:
‘… the Commission considered, correctly, that the infringement had immediately affected the EEA, since the cartel arrangements had directly influenced the setting of prices and the setting of volumes of [cathode ray tubes] delivered to the EEA either directly or through transformed products [that is to say, incorporated within the same group in a finished product and then sold by one of the addressees of the contested decision to customers in the EEA], and that both [colour display tubes for computer monitors] and [colour picture tubes for television sets] had been sourced and shipped directly from the production facilities of the cartel members in other parts of the world to the EEA.’
161 In so doing, the General Court did not in any way rule out the possibility that an immediate effect might materialise in circumstances such as those of the present case, in which the direct purchaser of the cartelised service is not located in the EEA. That is particularly so because, as is apparent from paragraphs 117 and 137 above, the particularity of the services at issue in the present case, namely inbound freight services, is that they are specifically intended to transport goods from third countries to the EEA.
162 It follows from the foregoing that the effect at issue is foreseeable, substantial and immediate and that the first ground on which the Commission relied in order to conclude that the qualified effects test was satisfied is well founded. It must therefore be held that the Commission could, without making an error, find that the test was satisfied as regards the coordination in relation to inbound freight services taken in isolation, without there being any need to examine the merits of the second ground relied on in recital 1045 of the contested decision.
2. The effects of the single and continuous infringement taken as a whole
163 It should be noted at the outset that there is nothing to prevent an assessment of whether the Commission has the necessary jurisdiction to apply, in each case, EU competition law in the light of the conduct of the undertaking or undertakings in question, viewed as a whole (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 50).
164 According to the case-law, Article 101 TFEU may be applied to practices and agreements that serve the same anticompetitive objective, provided that it is foreseeable that, taken together, they will have immediate and substantial effects in the internal market. Undertakings cannot be allowed to avoid the application of the EU competition rules by combining a number of types of conduct that pursue the same objective, each of which, taken on its own, is not capable of producing an immediate and substantial effect in that market, but which, taken together, are capable of producing such an effect (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 106).
165 The Commission may thus base its jurisdiction to apply Article 101 TFEU to a single and continuous infringement as found in the decision at issue on the foreseeable, immediate and substantial effects of that infringement in the internal market (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 105).
166 Contrary to what the applicants submit, it is not apparent from that case-law that its scope in cases of application of Article 101 TFEU is limited to cases of ‘conduct on one market that reinforces effects of conduct on other markets’ and that it is not applicable in a situation such as that in the present case, a situation in which the single infringement ‘is based on a common object and associative links’.
167 Those considerations apply, mutatis mutandis, to Article 53 of the EEA Agreement.
168 In recital 869 of the contested decision, the Commission characterised the conduct at issue as a single and continuous infringement, including in so far as it concerned inbound freight services. To the extent that the applicants contest that characterisation in general and the finding of the existence of a single anticompetitive aim of distorting competition within the EEA, on which it is based, their arguments will be examined in the context of the third plea, which relates to that matter.
169 In recital 1046 of the contested decision, the Commission, as is apparent from its answers to the written and oral questions put by the General Court, examined the effects of that infringement taken as a whole. It thus found, inter alia, that its investigation had revealed a ‘cartel [that] was implemented globally’, whose ‘arrangements concerning inbound routes formed an integral part of the single and continuous infringement of Article 101 of the TFEU and Article 53 of the EEA Agreement’. It added that the ‘uniform application of the surcharges on a world wide scale was a key element of the cartel [at issue]’. As the Commission stated in reply to the written questions put by the General Court, the uniform application of the surcharges forms part of an overall strategy designed to neutralise the risk that the freight forwarders could circumvent the effects of that cartel by opting for indirect routes which would not be subject to coordinated surcharges in order to transport goods from the point of origin to the point of destination. The reason for this is, as is apparent from recital 72 of the contested decision, that ‘there is not the same time sensitivity associated with [freight] transport as there is with passenger transport’, so that freight ‘may be routed with a higher number of stopovers’ and that indirect routes can, therefore, be substituted for direct routes.
170 In those circumstances, the Commission is correct in noting that prohibiting it from applying the qualified effects test to the conduct at issue taken as a whole might lead to an artificial fragmentation of comprehensive anticompetitive conduct, capable of affecting the market structure within the EEA, into a collection of separate forms of conduct which might escape, in whole or in part, the European Union’s jurisdiction (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 57).
171 It must therefore be held that the Commission was entitled, in recital 1046 of the contested decision, to examine the effects of the single and continuous infringement taken as a whole.
172 As regards agreements and practices which, first, had the object of restricting competition at least in the European Union, the EEA and Switzerland (recital 903 of that decision), second, brought together carriers with significant market shares (recital 1209 of that decision) and, third, a significant part of which related to intra-EEA routes for a period of more than six years (recital 1146 of that decision), there can be little doubt that it was foreseeable that, taken as a whole, the single and continuous infringement would produce immediate and substantial effects in the internal market or within the EEA.
173 It follows that the Commission was also entitled to find, in recital 1046 of the contested decision, that the qualified effects test was satisfied as regards the single and continuous infringement taken as a whole.
174 Since the Commission has thus established to the requisite legal standard that it was foreseeable that the conduct at issue would produce a substantial and immediate effect in the EEA, the present complaint must be rejected, as, consequently, must the present plea in its entirety, without it being necessary to examine the first part thereof, alleging errors in the application of the implementation test.
C. The plea, raised of the General Court’s own motion, alleging lack of jurisdiction on the part of the Commission in the light of the EC-Switzerland Air Transport Agreement to find and penalise an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes
175 As a preliminary point, it should be recalled that it is for the Courts of the European Union to examine of their own motion the plea, which is a matter of public policy, alleging a lack of jurisdiction on the part of the author of the contested measure (see, to that effect, judgment of 13 July 2000, Salzgitter v Commission, C‑210/98 P, EU:C:2000:397, paragraph 56).
176 According to settled case-law, the Courts of the European Union cannot, as a general rule, base their decisions on a plea raised of their own motion – even one involving a matter of public policy – without first having invited the parties to submit their observations in that regard (see judgment of 17 December 2009, Review M v EMEA, C‑197/09 RX-II, EU:C:2009:804, paragraph 57 and the case-law cited).
177 In the present case, the General Court takes the view that it has a duty to examine of its own motion whether the Commission exceeded its own jurisdiction on the basis of the EC-Switzerland Air Transport Agreement as regards non-EU EEA-Switzerland routes by finding, in Article 1(3) of the contested decision, that there had been an infringement of Article 53 of the EEA Agreement on non-EU EEA-third country routes, and invited the parties to submit their observations in that regard in the context of measures of organisation of procedure.
178 The applicants submitted that, in Article 1(3) of the contested decision, the Commission had found an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes. They added that, in so doing, the Commission had infringed Article 11(2) of the EC-Switzerland Air Transport Agreement.
179 The Commission replies that the reference in Article 1(3) of the contested decision to ‘routes between airports in countries that are Contracting Parties of the EEA Agreement but not Member States and airports in third countries’ cannot be interpreted as including non-EU EEA-Switzerland routes. In its view, the concept of ‘third country’ within the meaning of that article excludes the Swiss Confederation.
180 The Commission adds that, if it were to be held that it found the applicants liable for an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes in Article 1(3) of the contested decision, it would have exceeded the limits which Article 11(2) of the EC-Switzerland Air Transport Agreement imposes on its jurisdiction.
181 It is necessary to determine whether, as the applicants maintain, the Commission found an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes in Article 1(3) of the contested decision and, if so, whether it thus exceeded the limits of its jurisdiction under the EC-Switzerland Air Transport Agreement.
182 In that regard, it should be recalled that, as was noted in paragraph 76 above, it is the operative part, and not the statement of reasons, of a decision which is important for the purposes of determining the scope and nature of the infringements penalised.
183 In Article 1(3) of the contested decision, the Commission found that the applicants had ‘infringed Article 53 of the EEA Agreement as regards routes between airports in countries that are Contracting Parties of the EEA Agreement but not Member States and airports in third countries’ from 19 May 2005 to 7 December 2005. The Commission neither expressly included non-EU EEA-Switzerland routes amongst those routes, nor expressly excluded them.
184 It is therefore necessary to ascertain whether the Swiss Confederation is amongst the ‘third countries’ referred to in Article 1(3) of the contested decision.
185 In that regard, it should be noted that Article 1(3) of the contested decision distinguishes between ‘countries that are Contracting Parties of the EEA Agreement but not Member States’ and third countries. It is true that, as the applicants observe, the Swiss Confederation is not party to the EEA Agreement and therefore is included amongst the third countries to that agreement.
186 It should, however, be recalled that, given the requirements of unity and consistency in the EU legal order, the same words used in the same act must be assumed to have the same meaning.
187 In Article 1(2) of the contested decision, the Commission found an infringement of Article 101 TFEU as regards ‘routes between airports within the European Union and airports outside the EEA’. That concept does not include airports in Switzerland, even though the Swiss Confederation is not party to the EEA Agreement and its airports must therefore formally be regarded as being ‘outside the EEA’ or, in other words, in a third country to that agreement. Those airports are the subject of Article 1(4) of the contested decision, which finds an infringement of Article 8 of the EC-Switzerland Air Transport Agreement, as regards ‘routes between airports within the European Union and airports in Switzerland’.
188 In accordance with the principle recalled in paragraph 186 above, it must therefore be assumed that the phrase ‘airports in third countries’ used in Article 1(3) of the contested decision has the same meaning as the phrase ‘airports outside the EEA’ used in Article 1(2) thereof and, therefore, excludes airports in Switzerland.
189 In the absence of the slightest indication in the operative part of the contested decision that the Commission intended to give a different meaning to the concept of ‘third countries’ referred to in Article 1(3) of the contested decision, it must be held that the concept of ‘third countries’ referred to in Article 1(3) thereof excludes the Swiss Confederation.
190 It therefore cannot be held that the Commission found the applicants liable for an infringement of Article 53 of the EEA Agreement as regards non-EU EEA-Switzerland routes in Article 1(3) of the contested decision.
191 Since the operative part of the contested decision leaves no room for doubt, it is therefore solely for the sake of completeness that the General Court adds that the grounds of that decision do not contradict that conclusion.
192 In recital 1146 of the contested decision, the Commission stated that the ‘anti-competitive arrangements’ which it had described infringed Article 101 TFEU from 1 May 2004 to 14 February 2006 ‘as regards air transport between airports within the [European Union] and airports outside the EEA’. In the relevant footnote (No 1514), the Commission stated the following: ‘For the purpose of this Decision, “airports outside the EEA” include airports in countries other than in Switzerland and in Contracting Parties to the EEA Agreement’.
193 It is true that, where it described the scope of the infringement of Article 53 of the EEA Agreement in recital 1146 of the contested decision, the Commission did not refer to the concept of ‘airports outside the EEA’ but rather to ‘airports in third countries’. It cannot, however, be inferred therefrom that the Commission intended to give a different meaning to the concept of ‘airports outside the EEA’ for the purposes of applying Article 101 TFEU and to that of ‘airports in third countries’ for the purposes of applying Article 53 of the EEA Agreement. On the contrary, the Commission used those two phrases interchangeably in the contested decision. Thus, in recital 824 of the contested decision, the Commission stated that it ‘[would] not apply Article 101 of the TFEU to anti-competitive agreements and practices concerning air transport between EU airports and airports in third countries that took place before 1 May 2004’. Similarly, in recital 1222 of that decision, as regards the end of SAS Consortium’s participation in the single and continuous infringement, the Commission referred to its jurisdiction on the basis of those provisions ‘on routes between the [European Union] and third countries as well as routes between Iceland, Norway and Liechtenstein and countries outside the EEA’.
194 The grounds of the contested decision therefore confirm that the concepts of ‘airports in third countries’ and ‘airports outside the EEA’ have the same meaning. In accordance with the definition set out in footnote No 1514, it must therefore be held that both concepts exclude airports in Switzerland.
195 Contrary to the applicants’ arguments, recitals 1194 and 1241 of the contested decision do not advocate another outcome. Admittedly, the Commission referred, in recital 1194 of that decision, to ‘EEA-third country routes, except routes between the [European Union] and Switzerland’. Similarly, in recital 1241 of that decision, in the context of the ‘determination of the value of sales on third country routes’, the Commission reduced by 50% the basic amount for ‘EEA-third country routes, except routes between the [European Union] and Switzerland where [it] is acting under the [EC-Switzerland Air Transport Agreement]’. It could be considered, as the applicants observe in essence, that if the Commission took care to insert in those recitals the words ‘except routes between the [European Union] and Switzerland’, it is because it took the view that the Swiss Confederation fell within the scope of the concept of ‘third country’ in so far as the EEA-third country routes were concerned.
196 The Commission acknowledged, furthermore, that it was possible that it had ‘inadvertently’ included in the value of sales the turnover which some of the incriminated carriers generated on non-EU EEA-Switzerland routes during the period concerned. According to the Commission, the reason for this is that, in its request for information of 26 January 2009 concerning certain turnover figures, it did not inform the carriers concerned that turnover on non-EU EEA-Switzerland routes should be excluded from the value of sales on non-EU EEA-third country routes.
197 It must nevertheless be found, as the Commission did, that those elements relate exclusively to the revenues to be taken into account for the purposes of calculating the basic amount of the fine, not of determining the geographical boundaries of the single and continuous infringement which is at issue here.
198 The present plea must therefore be rejected.
D. The second plea, alleging infringement of Article 11(2) of the EC-Switzerland Air Transport Agreement and failure to observe the principle of international comity and the principle of non-retroactivity of criminal laws
199 The applicants allege that the Commission infringed Article 11(2) of the EC-Switzerland Air Transport Agreement and failed to observe the principle of international comity, and applied Regulation No 1/2003 in breach of the principle of non-retroactivity of criminal laws, by referring in the contested decision to contacts in Switzerland (‘the Swiss contacts’) and to non-EEA/Swiss contacts.
200 In the first place, as regards the Swiss contacts, the applicants submit that Article 11 of the EC-Switzerland Air Transport Agreement divides powers between the Commission and the Swiss authorities in such a way as to prevent unilateral assertions of jurisdiction as regards an infringement whose centre of gravity is in the territory of the other contracting party. Article 11(2) of that agreement thus limits the Commission’s jurisdiction, reserving to the Swiss authorities sole jurisdiction to apply the rules that prohibit anticompetitive agreements and practices to air transport between Switzerland and third countries. The aim is, in particular, to prevent undue interference with Switzerland’s external policy and to avert conflicts between the competition rules and obligations which Switzerland has undertaken under international Air Service Agreements (ASAs) entered into with various third countries, with many of those agreements allowing, encouraging or requiring carriers to coordinate their rates.
201 The applicants argue that the Commission’s position, whereby it asserts sole responsibility for applying Articles 8 and 9 of the EC-Switzerland Air Transport Agreement to conduct which is found in Switzerland concerning air transport between Switzerland and third countries and only tangentially affects air transport between Switzerland and the European Union, is therefore incompatible with the system created by Article 11 of that agreement and with the principle of international comity.
202 The applicants submit that the Swiss contacts concerned primarily, if not exclusively, freight services between Switzerland and third countries. The contested decision is thus based to a large extent on practices of Air Cargo Council Switzerland (‘ACCS’), which the Commission identified as a platform for contacts between the incriminated carriers, even though it was chaired by representatives of third country carriers during the period concerned and its members included carriers the vast majority of which are from third countries and which operate only on routes between Switzerland and third countries. The prominence of carriers established outside the EEA is explained by the fact that EU-Switzerland routes are negligible when compared to routes between Switzerland and third countries. As for the meeting held on 17 January 2001, on which the Commission relies in order to show that contacts within ACCS related to EU-Switzerland routes, it concerned a price decrease and was attended by only a minority of European carriers.
203 In their reply, the applicants add that, even if the exclusion of the evidence relating to the Swiss contacts were primarily to affect the extent of the participation of other undertakings in the infringement, that would still justify at least a partial annulment of the operative part of the contested decision. The precise scope of the infringement may indeed have material implications in the context of actions for damages.
204 In the second place, as regards the non-EEA/Swiss contacts, the applicants allege, in essence, that the Commission relied on non-EEA/Swiss contacts prior to 1 May 2004 in order to find that there was a single and continuous infringement and that it therefore applied Regulation No 1/2003 to those contacts before it became applicable to EU-third country routes. Before the entry into force of Regulation No 1/2003 on that date, Article 1(2) of Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (OJ 1987 L 374, p. 1) limited the Commission’s jurisdiction to apply Article 101 TFEU to international air transport to routes between airports in the European Union. That jurisdiction was defined by the place where the services concerned were provided, and not by the scope of the infringement at issue.
205 The applicants submit that, by their very nature, the non-EEA/Swiss contacts that took place prior to 1 May 2004, which the Commission cites extensively in the contested decision, solely concerned air transport services on EEA-third country routes. Contacts between local representatives of carriers during meetings of the BAR or in similar forums in Hong Kong, Thailand, the Philippines or Japan did not in any way concern intra-EEA routes. It is true that contacts concerning the surcharges applied in countries such as Hong Kong, Thailand or the Philippines were not always route-specific. They were, however, limited to a number of routes none of which was between airports within the EEA. The majority of the carriers that were present at meetings of the kind referred to above did not even have the necessary rights to operate intra-EEA routes. As for those carriers that did have such rights, they were represented at such meetings by local employees who had no mandate to discuss the price of intra-EEA flights, let alone the requisite knowledge to do so.
206 In their reply, the applicants add, in essence, that the Commission is not justified in relying on the distinction between jurisdiction to ‘establish’ an infringement of the competition rules on routes entirely or partly outside the EEA and jurisdiction to rely on non-EEA/Swiss contacts to establish the existence of a worldwide cartel. Such a distinction is dubious and is not made in the contested decision.
207 The Commission disputes the applicants’ arguments.
208 As a preliminary point, it is appropriate to note the relevant rules governing the Commission’s jurisdiction to find and penalise infringements of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement.
209 Article 103(1) TFEU confers on the Council of the European Union the power to adopt the appropriate regulations or directives to give effect to the principles set out in Articles 101 and 102 TFEU.
210 In the absence of such legislation, Articles 104 and 105 TFEU continue to apply. Those provisions impose, in essence, the obligation to apply Articles 101 and 102 TFEU on the authorities of the Member States, and limit the Commission’s powers in this area to investigating, on application by a Member State or on its own initiative, and in conjunction with the competent authorities of the Member States which lend their assistance to it, cases of suspected infringement of the principles laid down in those provisions and, where appropriate, proposing appropriate measures to bring them to an end (judgment of 30 April 1986, Asjes and Others, 209/84 to 213/84, EU:C:1986:188, paragraphs 52 to 54 and 58).
211 On 6 February 1962, the Council adopted, on the basis of Article [103 TFEU], Regulation No 17, First Regulation implementing Articles [101] and [102 TFEU] (OJ, English Special Edition 1959-1962, p. 87).
212 However, Regulation No 141 of the Council of 26 November 1962 exempting transport from the application of Council Regulation No 17 (OJ, English Special Edition 1959-1962, p. 291) removed the whole of the transport sector from the application of Regulation No 17 (judgment of 11 March 1997, Commission v UIC, C‑264/95 P, EU:C:1997:143, paragraph 44). In those circumstances, in the absence of legislation such as that provided for in Article 103(1) TFEU, Articles 104 and 105 TFEU initially continued to apply to air transport (judgment of 30 April 1986, Asjes and Others, 209/84 to 213/84, EU:C:1986:188, paragraphs 51 and 52).
213 The consequence thereof was a division of powers between the Member States and the Commission for the application of Articles 101 and 102 TFEU as described in paragraph 210 above.
214 It was only in 1987 that the Council adopted a regulation on air transport pursuant to Article 103(1) TFEU. This was Regulation No 3975/87, which gave the Commission the power to apply Articles 101 and 102 TFEU to international air transport between EU airports, to the exclusion of international air transport between the airports of a Member State and those of a third country (judgment of 11 April 1989, Saeed Flugreisen and Silver Line Reisebüro, 66/86, EU:C:1989:140, paragraph 11). The latter remained subject to Articles 104 and 105 TFEU (see, to that effect, judgment of 12 December 2000, Aéroports de Paris v Commission, T‑128/98, EU:T:2000:290, paragraph 55).
215 The entry into force, in 1994, of Protocol 21 to the EEA Agreement on the implementation of competition rules applicable to undertakings (OJ 1994 L 1, p. 181) extended those rules to the implementation of the competition rules laid down in the EEA Agreement, thus precluding the Commission from applying Articles 53 and 54 of the EEA Agreement to international air transport between airports of States party to the EEA which are not members of the European Union and those of third countries.
216 Regulation No 1/2003 and Decision of the EEA Joint Committee No 130/2004 of 24 September 2004 amending Annex XIV (Competition), Protocol 21 (on the implementation of the competition rules applicable to undertakings) and Protocol 23 (concerning the cooperation between the surveillance authorities) to the EEA Agreement (OJ 2005 L 64, p. 57), which subsequently incorporated that regulation into the EEA Agreement, initially left that scheme intact. Article 32(c) of Regulation No 1/2003 provided that the latter ‘[did not] apply to air transport between [European Union] airports and third countries’.
217 Regulation No 411/2004, Article 1 of which repealed Regulation No 3975/87 and Article 3 of which repealed Article 32(c) of Regulation No 1/2003, gave the Commission the power to apply Articles 101 and 102 TFEU to EU-third country routes as from 1 May 2004.
218 Decision of the EEA Joint Committee No 40/2005 of 11 March 2005 amending Annex XIII (Transport) and Protocol 21 (on the implementation of competition rules applicable to undertakings) to the EEA Agreement (OJ 2005 L 198, p. 38) incorporated Regulation No 411/2004 into the EEA Agreement, giving the Commission the power to apply Articles 53 and 54 of the EEA Agreement to non-EU EEA-third country routes from 19 May 2005.
219 As for the EC-Switzerland Air Transport Agreement, it should be noted that it is, in principle, for the Commission to apply Article 8 thereof. Article 11(2) of that agreement nonetheless reserves to the Swiss authorities jurisdiction to rule on the admissibility of all agreements, decisions and concerted practices concerning routes between Switzerland and third countries to that agreement.
220 In the present case, the parties agree that the Commission did not, in the operative part of the contested decision, find an infringement of Article 101 TFEU on EU-third country routes before 1 May 2004 or of Article 53 of the EEA Agreement on non-EU EEA-third country routes before 19 May 2005. It also did not find, in that operative part, an infringement of Article 101 TFEU, Article 8 of the EC-Switzerland Air Transport Agreement or Article 53 of the EEA Agreement on routes between Switzerland and third countries. It did not, with stronger reason and contrary to the applicants’ submissions, assert ‘sole responsibility for applying Articles 8 and 9 of the [EC-Switzerland Air Transport] Agreement to conduct found’ on such routes.
221 It follows that the operative part of the contested decision does not support the applicants’ argument that the Commission applied Regulation No 1/2003 in breach of the principle of non-retroactivity of criminal laws or exceeded the limits of its jurisdiction under the EC-Switzerland Air Transport Agreement.
222 The applicants nevertheless consider that the Commission rendered the contested decision unlawful by referring to contacts relating to routes which, in the periods at issue, allegedly fell outside its territorial jurisdiction in order to find an infringement of the relevant provisions on routes falling within the scope of its jurisdiction. As for the Swiss contacts, the applicants cite 20 recitals (recitals 182, 203, 204, 235, 255, 331, 364, 427, 428, 461, 463, 499, 501, 502, 534, 535, 563, 573, 574 and 641) and, ‘e.g.,’ 16 recitals (recitals 182, 204, 364, 366, 427, 428, 440, 443, 461, 501, 502, 561 to 563, 573 and 574) that were, in their view, ‘key parts of the overall body of evidence for establishing the participation of Lufthansa [and] Swiss’ and that of AF and British Airways, respectively. As for the non-EEA/Swiss contacts, the applicants refer to 24 recitals (recitals 146 to 153, 165, 183, 205 to 208, 243, 244, 256, 257, 291, 292, 306 and 332 to 334).
223 As a preliminary point, it should be noted that those arguments are vitiated by a number of inaccuracies. First, the Commission did not, in recitals 773 to 783 of the contested decision, in which it listed the evidence against the applicants, rely against them on all of the Swiss contacts described in the 20 recitals in question. The Commission refrained from mentioning in that regard recitals 203, 204, 235, 255 and 641 of the contested decision.
224 In so far as the applicants submit that the Commission relied, in order to hold them liable for the single and continuous infringement, on all of the non-EEA/Swiss contacts prior to 1 May 2004 referred to in the 24 recitals that they cite in the application, it must be noted that they are also mistaken. The Commission mentions only seven of those recitals in recitals 773 to 783 of the contested decision (recitals 146, 152, 244, 256, 291, 292 and 306).
225 That said, it should be noted that the present plea concerns the inclusion of the Swiss and non-EEA/Swiss contacts in the single and continuous infringement, and not solely the applicants’ participation in all or part of that infringement. The General Court will therefore examine below whether the Commission was justified in including in the single and continuous infringement the contacts at issue that were not relied on against the applicants and that are described in recitals 147 to 151, 165, 183, 203, 204 to 208, 235, 243, 255 to 257, 332 to 334 and 641 of the contested decision.
226 Second, the material in the file does not fully support the interpretation, which the applicants have defended before the General Court, of the content of the Swiss contacts and the non-EEA/Swiss contacts prior to 1 May 2004. It should thus be noted that the relative insignificance of the EU-Switzerland routes in relation to routes between Switzerland and third countries, and the fact that ACCS was chaired by representatives of third-country carriers during the period concerned and its members included carriers the vast majority of which are from third countries and which, in the applicants’ view, operate only on routes between Switzerland and third countries, are in no way capable of demonstrating that the Commission was not justified in taking the view that the Swiss contacts also related to EU-Switzerland routes. The parties agree that EU carriers, including AF, KLM, British Airways, the applicants and Martinair, which, it is not disputed, had traffic rights on EU-Switzerland routes, were amongst the members of ACCS. Those carriers actively participated in a number of the Swiss contacts, both as regards the FSC and the SSC (see, in particular, recitals 182, 364, 427, 428, 501, 502 and 641). In so far as those contacts related to routes from Switzerland without distinction, the Commission cannot be criticised for having taken the view that they also concerned EU-Switzerland routes, albeit to a lesser extent. As regards the fact that one of those contacts concerned a reduction in the FSC rather than an increase, it is irrelevant for the purposes of applying the relevant competition rules.
227 As for the non-EEA/Swiss contacts prior to 1 May 2004, it should be observed, as the applicants have done, that they took place in third countries or, at the very least, that they involved local employees of the incriminated carriers in those countries. It should be noted, however, that there was nothing to prevent the incriminated carriers from coordinating with each other or exchanging information in such countries concerning intra-EEA freight services. By way of illustration, in recital 296 of the contested decision, mention is made of an internal email from the Qantas office in Singapore of 18 February 2003 in which reference is made to the introduction of a certain amount of FSC by British Airways ‘in Europe’. Similarly, as regards the non-EEA/Swiss contacts relied on against the applicants, in recital 206 of the contested decision, reference is made to a letter of 19 November 2001 in which the Chairman of the BAR CSC in Hong Kong invited the members of the association to ‘advise [him] if [their] head offices [had] any plan to reduce or withdraw the [FSC] in overseas markets’.
228 That said, it should be noted that the present pleas would be unsuccessful even if the Swiss contacts and the non-EEA/Swiss contacts prior to 1 May 2004 cited by the applicants exclusively concerned routes which, over the period concerned, fell outside the Commission’s jurisdiction.
229 In that regard, it must be borne in mind that the Commission can rely on contacts pre-dating the period of infringement in order to create an overall picture of the situation and thus to support the interpretation of certain items of evidence (judgment of 8 July 2008, Lafarge v Commission, T‑54/03, not published, EU:T:2008:255, paragraphs 427 and 428). This is the case even if the Commission had no jurisdiction to find and penalise an infringement of the competition rules prior to that period (see, to that effect, judgments of 30 May 2006, Bank Austria Creditanstalt v Commission, T‑198/03, EU:T:2006:136, paragraph 89, and of 22 March 2012, Slovak Telekom v Commission, T‑458/09 and T‑171/10, EU:T:2012:145, paragraphs 45 to 52).
230 In the part of the contested decision entitled ‘Basic principles and structure of the cartel’, in recital 107, the Commission stated that its investigation had uncovered a worldwide cartel based on a network of bilateral and multilateral contacts, which had taken place ‘at various levels in the undertakings concerned … and in some instances related to various geographical areas’.
231 In recitals 109, 110, 876, 889 and 1046 of and in footnote No 1323 to the contested decision, the Commission described the multi-level mode of operation of that arrangement. In the Commission’s view, the surcharges were measures of general application that were not route specific, but were intended to be applied on all routes, on a worldwide basis. Decisions concerning surcharges were generally taken at the level of the head office of each carrier. The head offices of the carriers were thus in ‘contact with each other’ when a change to the surcharge level was imminent. The carriers coordinated at local level, partly to better implement the instructions received from their respective head offices and to adapt them to local market conditions and to local regulations, partly to coordinate and implement local initiatives. In recital 111 of the contested decision, the Commission stated that local associations of carrier representatives had been used for that purpose, in particular in Hong Kong and Switzerland.
232 The Swiss contacts and the non-EEA/Swiss contacts prior to 1 May 2004 cited by the applicants specifically took place within that framework. First, all of the Swiss contacts concerned the introduction or implementation of surcharges in Switzerland. As for the 25 non-EEA/Swiss contacts prior to 1 May 2004 cited by the applicants, they concerned, in whole or in part, the introduction or implementation of surcharges in Hong Kong (recitals 147 to 150, 165, 205 to 208 and 332), Singapore (recitals 146, 243 and 333) and Japan (recitals 183, 244, 256 and 257) and, to a lesser extent, in India (recitals 152 and 334), Sri Lanka (recital 153), Thailand (recital 306) or Canada (recitals 291 and 292). Second, a number of the Swiss and non-EEA/Swiss contacts involved employees of the head offices of the incriminated carriers or referred to instructions issued by those employees or to communications with them (recitals 152, 182 and 331). Third, the vast majority of those contacts either reflect, at local level, announcements made or decisions taken previously at central level (recitals 147 to 149, 152, 165, 182, 204, 208, 235, 243, 244, 255, 291, 331 to 333, 364, 427, 428, 443, 461, 463, 501, 502, 534, 562 and 563), or are at least contemporaneous with discussions between the head offices or decisions taken at head-office level concerning surcharges (recitals 146, 203, 207, 306, 334, 440, 499, 561, 573, 574 and 641). Fourth, all of the Swiss contacts relied on against the applicants and a substantial proportion of the non-EEA/Swiss contacts prior to 1 May 2004 relied on against them took place in the context of, or ancillary to, local associations of carrier representatives (recitals 146, 147, 149, 152, 165, 207, 208, 243 and 332 to 334).
233 Moreover, the applicants have not claimed that those contacts fail to support the interpretation of other evidence relied on for the purpose of establishing the single and continuous infringement, which is not alleged to fall outside the Commission’s jurisdiction. On the contrary, the applicants, first, maintain that the contested decision ‘relies heavily on Swiss Contacts to establish an infringement of Article 8 of the [EC-Switzerland Air Transport Agreement], Article 101 TFEU and Article 53 of the EEA Agreement’ and, second, criticise the contested ‘Decision’s heavy reliance on [the non-EEA/Swiss] Contacts to establish a single infringement and individual [carriers’] involvement therein’. In that regard, it should be noted that the Commission describes, in the contested decision, as regards the FSC, the contacts supporting the finding of an infringement between the end of 1999 and spring 2005 in Sections 4.3.4 to 4.3.18 (recitals 133 to 468). As regards the contacts relating to the SSC, described in recitals 581 to 674, the vast majority of them took place before 19 May 2005, and a large majority of them before 1 May 2004. Thus, the contacts relied on by the applicants represent a fraction of all the contacts that the Commission relied on in order to establish the existence of an infringement of Article 101 TFEU and Article 53 of the EEA Agreement before 1 May 2004 and 19 May 2005, respectively, for the routes in regard to which it had jurisdiction and in regard to FSC and SSC aspects.
234 Moreover, in so far as those contacts were relied on against the applicants in recitals 773 to 783 of the contested decision, they supported the Commission’s interpretation of other evidence which is not alleged to fall outside its jurisdiction. Thus, the 14 Swiss contacts and the seven non-EEA/Swiss contacts prior to 1 May 2004 cited by the applicants in the application and relied on by the Commission against Lufthansa in recital 775 of the contested decision are amongst the more than 100 contacts at issue cited by the Commission in order to establish Lufthansa’s participation in the element of the single and continuous infringement relating to the FSC. As for the 14 Swiss contacts cited by the applicants in the application and relied on by the Commission against Swiss in recital 781 of the contested decision, they are amongst the approximately 60 contacts at issue on the basis of which the Commission concluded that Swiss had participated in that element.
235 It follows that the Commission did not exceed the limits of its jurisdiction by relying on the Swiss contacts and the non-EEA/Swiss contacts prior to 1 May 2004 cited in the application in order to create an overall picture of the cartel at issue and thus to support the interpretation of other evidence which it relied upon.
236 The fact that the applicants invoked the principle of international comity is not capable of calling that conclusion into question. The applicants have failed to explain how the interests of one or more countries or territories have, in their view, been negatively affected as a result of the taking into account of the Swiss and non-EEA/Swiss contacts cited in the application.
237 The present plea can therefore only be rejected.
E. The third plea, alleging infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement
238 The applicants complain that the Commission infringed Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement by misapplying the concept of a single and continuous infringement. According to the applicants, the Commission erred in including, without distinction and without prior legal or factual analysis, the non-EEA/Swiss contacts, the contacts in the context of the WOW alliance (‘the WOW contacts’) and the contacts relating to the refusal to pay commission within the scope of the single and continuous infringement.
239 As a preliminary point, it must be borne in mind that an infringement of the prohibition in principle laid down in Article 101(1) TFEU may result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Thus, when the different actions form part of an ‘overall plan’, because their identical object distorts competition within the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 41 and the case-law cited).
240 When determining whether there has been a single infringement and an overall plan, the fact that the various actions of the undertakings form part of an ‘overall plan’, because their identical object distorts competition within the internal market, is decisive. For the purposes of that assessment, both the at least partial identity of the undertakings concerned (see, to that effect, judgment of 13 September 2013, Total Raffinage Marketing v Commission, T‑566/08, EU:T:2013:423, paragraphs 265 and 266 and the case-law cited) and the various material, geographic and temporal overlaps between the acts and the conduct in question may be relevant.
241 This is particularly the case for the identical nature of the goods or services concerned, the identical nature of the detailed rules for implementation, whether the natural persons involved on behalf of the undertakings are identical and whether the geographical scope of the practices at issue is identical (see, to that effect, judgment of 17 May 2013, Trelleborg Industrie and Trelleborg v Commission, T‑147/09 and T‑148/09, EU:T:2013:259, paragraph 60).
242 According to the case-law, those factors must be assessed as a whole (judgment of 16 September 2013, Masco and Others v Commission, T‑378/10, EU:T:2013:469, paragraph 58).
243 In the present case, in recitals 872 to 883 of the contested decision, the Commission relied on six factors in order to conclude that the conduct at issue formed part of a single infringement. These included, first, the existence of a single anticompetitive aim (recitals 872 to 876); second, the fact that that conduct concerned a single service (recital 877); third, the identity of the undertakings involved in the various instances of conduct at issue (recital 878); fourth, the single nature of the infringement (recital 879); fifth, the fact that the discussions in which the incriminated carriers participated took place side by side (recital 880); and, sixth, the involvement of the majority of the incriminated carriers in the three elements of the single and continuous infringement (recitals 881 to 883).
244 In recital 900 of the contested decision, the Commission added to those factors the fact that the same persons were involved in the various instances of conduct at issue.
245 It is in the light of those considerations that it is appropriate to assess whether the Commission was justified in including within the scope of the single and continuous infringement, first, the non-EEA/Swiss contacts, second, the WOW contacts and, third, the contacts relating to the refusal to pay commission.
1. The non-EEA/Swiss contacts
246 The applicants complain that the Commission characterised the non-EEA/Swiss contacts as constituting part of the single and continuous infringement together with the contacts at the level of the head offices of the incriminated carriers. In support of their argument, the applicants rely, in essence, on four arguments.
247 In the first place, the applicants submit that the finding that the non-EEA/Swiss contacts and the head-office-level contacts had the same aim or objective is not justified and is not sufficient to support the conclusion that they formed part of one and the same single and continuous infringement. The same is true of the fact that those two sets of contacts concerned the same types of pricing element. That is particularly so because, in the applicants’ view, the non-EEA/Swiss contacts had, by definition, no nexus to the EEA and could not therefore pursue the objective of restricting competition in the EEA.
248 In the applicants’ view, it would have been necessary to critically examine whether there was a link of complementarity between the two sets of contacts, especially in view of the very diverse nature of the contacts in question. However, there is no such analysis in the contested decision.
249 In the second place, the applicants submit that the non-EEA/Swiss contacts reflected market conditions that were significantly different from those of the EEA. Those differences were of a regulatory, monetary and commercial nature. The Commission’s previous practice followed in taking decisions on merger control acknowledges, moreover, that competitive conditions outside the EEA vary from one country to another or, at the very least, from one continent to another.
250 In the third place, the applicants maintain that the Commission failed to take into account differences in terms of content and methods used between the non-EEA/Swiss contacts and the head-office-level contacts. The head-office-level contacts concerned only a small number of individuals with global responsibility for pricing in their respective undertakings and were limited to telephone calls, face-to-face meetings and other private communications. Conversely, the majority of the non-EEA/Swiss contacts were prompted, encouraged or required by local regulations and typically consisted of official meetings of local associations of carrier representatives in existing forums for discussing legitimate business issues, and the participants in those meetings were neither aware that their conduct might be contrary to EU competition rules, nor were they aware of the head-office-level contacts.
251 In the fourth place, the applicants submit that the Commission erred in finding that the non-EEA/Swiss contacts and the head-office-level contacts involved the same undertakings. First, a large number of carriers which did not participate in the head-office-level contacts participated, in the applicants’ view, in the non-EEA/Swiss contacts. Second, the employees who represented the carriers in the non-EEA/Swiss contacts were not, in the applicants’ view, the same as those who participated in the head-office-level contacts.
252 As a preliminary point, it should be noted that the applicants base their arguments on a distinction between two types of contact, namely the head-office-level contacts, which, in their view, fall within the scope of the single and continuous infringement, and the non-EEA/Swiss contacts, which, in their view, do not fall within the scope thereof. The Commission also included within the scope of the single and continuous infringement a third type of contact, namely the local contacts in the EEA. Since the applicants have not put forward any argument explaining why, for the purposes of examining the present plea, those contacts should be disregarded, the General Court takes the view that those contacts should be taken into account.
253 Having clarified that, it should be noted that the applicants do not dispute that, like the other contacts at issue, the non-EEA/Swiss contacts concerned freight services (single service) and frequently were the subject of joint discussions (elements discussed in parallel).
254 The applicants’ challenge concerns the identical objective and nature of those contacts and of the other contacts at issue and the question of whether they overlapped significantly as regards the incriminated carriers involved (that is to say, whether those carriers were the same undertakings and whether there was involvement in the three components of the single and continuous infringement) and involved the same persons.
255 That challenge cannot, however, succeed.
256 In the first place, as regards the identical anticompetitive objective of the non-EEA/Swiss contacts and of the other contacts at issue, it should be borne in mind, as the applicants submit, that the concept of a single objective cannot be determined by a general reference to the distortion of competition in a given sector, since an impact on competition, whether it is the object or the effect of the conduct in question, constitutes an element consubstantial with any conduct covered by Article 101(1) TFEU. Such a definition of the concept of a single objective is likely to deprive the concept of a single and continuous infringement of part of its meaning, since it would have the consequence that different instances of conduct which relate to a particular economic sector and are prohibited under Article 101(1) TFEU would have to be systematically characterised as constituent elements of a single infringement (judgments of 28 April 2010, Amann & Söhne and Cousin Filterie v Commission, T‑446/05, EU:T:2010:165, paragraph 92, and of 30 November 2011, Quinn Barlo and Others v Commission, T‑208/06, EU:T:2011:701, paragraph 149).
257 However, in the present case, the Commission did not merely determine the single anticompetitive objective pursued by the incriminated carriers by a general reference to the distortion of competition in the freight sector. In recital 872 of the contested decision, it found that that objective was to ‘[distort] competition in the [freight] sector … by coordinating [the] pricing behaviour [of the incriminated carriers] with respect to the provision of [freight] services by eliminating competition concerning the charging, amount and timing of the FSC, the SSC and the [refusal to pay commission] to forwarders’. In recital 874 of that decision, it referred to a ‘network of contacts which [had] ensured that discipline was maintained in the market and that increases arising from the fuel indices were to be applied in full and in a coordinated way thus removing pricing uncertainty’. It added that ‘this action [had been] extended to the SSC where the parties [had] again sought to remove pricing uncertainty’ and that ‘this [had been] reinforced’ by the refusal to pay commission on surcharges, which ‘ensured that pricing uncertainty, which could have arisen from competition on commission payments [in the context of negotiations with freight forwarders], remained suppressed’. In recital 899 of the contested decision, it stated that the ‘overall aim’ was to ‘agree on pricing or at least to remove pricing uncertainty in the [freight] sector in respect of the FSC, the SSC and the refusal to pay commission’.
258 In the second place, as regards the identical nature of the contacts at issue, it should be noted that the applicants do not dispute that, as is apparent from recital 879 of the contested decision, the non-EEA/Swiss contacts and the other contacts at issue all concerned the pricing of freight services, more particularly surcharges.
259 Furthermore, as regards the applicants’ argument that there are no links of complementarity between the non-EEA/Swiss contacts and the other contacts at issue, it must be borne in mind that, admittedly, the existence of such links between the various instances of conduct at issue, in the sense that each of them is intended to deal with one or more consequences of the normal pattern of competition, and, through interaction, contribute to the attainment of the set of anticompetitive effects desired by those responsible, within the framework of a global plan having a single objective, may also constitute objective evidence of the existence of an overall plan aimed at attaining a single anticompetitive objective (see, to that effect, judgments of 28 April 2010, Amann & Söhne and Cousin Filterie v Commission, T‑446/05, EU:T:2010:165, paragraph 92 and the case-law cited, and of 16 September 2013, Masco and Others v Commission, T‑378/10, EU:T:2013:469, paragraphs 22, 23 and 32 and the case-law cited).
260 However, contrary to what the applicants essentially submit, it is not necessary, for the purpose of characterising various instances of conduct as a single and continuous infringement, to establish whether they present such links. The concept of a ‘single objective’ requires only that it be ascertained whether there are any elements characterising the various instances of conduct forming part of the infringement which are capable of indicating that the instances of conduct in fact implemented by other participating undertakings do not have an identical object or identical anticompetitive effect and, consequently, do not form part of an ‘overall plan’ as a result of their identical object distorting the normal pattern of competition within the internal market (see, to that effect, judgment of 26 January 2017, Duravit and Others v Commission, C‑609/13 P, EU:C:2017:46, paragraph 121).
261 It follows that, even if it were to be established, the Commission’s alleged failure to demonstrate the existence of a link of complementarity between the agreements and practices at issue is not, in itself, capable of vitiating their classification as a single infringement.
262 In any event, it should be noted that the applicants’ arguments are factually incorrect. First, the applicants are wrong to submit that there could be no link of complementarity between the other contacts at issue and the non-EEA/Swiss contacts on the ground that the latter concerned, ‘by definition’, only freight services from third countries. As stated in paragraph 227 above, there was nothing to prevent the incriminated carriers from coordinating with each other or exchanging information in such countries concerning other freight services.
263 Conversely, the other contacts at issue could concern the application of surcharges at local level. Thus, in recital 597 to the contested decision, the Commission describes an internal email of 2 October 2001 in which the local Lufthansa manager in Japan asks one of the employees at head office to ‘by all means, [use a visit of senior managers of Japan Airlines to Europe as an] opportunity to talk to them [regarding the SSC] with the target to convince [Japan Airlines] to implement the same in Japan’. The recipient of that email forwarded it internally, stating that he would talk to Japan Airlines on 4 October 2001.
264 Second, even if the non-EEA/Swiss contacts would have exclusively concerned inbound routes, the applicants would not be justified in submitting that there was no link of complementarity between them and the other contacts at issue. It is true that the Commission did not expressly examine whether there was complementarity between the non-EEA/Swiss contacts and the other contacts at issue in the context of its examination of the single nature of the single and continuous infringement. The Commission focused, in that context, on examining the links of complementarity between the surcharges and the refusal to pay commission (recital 879 of the contested decision). The Commission cannot, however, be criticised for not having expressly examined, in that context, whether there were such links between all of the various categories and subcategories of possible and imaginable contacts. That is particularly so because the Commission, elsewhere in the contested decision, set out the reasons why there were such links between the non-EEA/Swiss contacts and the other contacts at issue. The Commission was therefore right to find, as regards coordination in relation to inbound routes, that the uniform application of surcharges on a worldwide scale was a key element of the cartel at issue (recital 1046 of the contested decision). The applicants themselves refer, moreover, in the fourth plea, to ‘associative links’ as regards coordination on inbound routes (see paragraph 166 above).
265 As for whether there are any differences in terms of content and methods used between the various unlawful actions at issue, it must be borne in mind that the content and methods used are one of the criteria used for the purpose of assessing the links of complementarity between them (see, to that effect, judgment of 27 June 2012, Coats Holdings v Commission, T‑439/07, EU:T:2012:320, paragraph 144).
266 As regards the content, it is apparent from recital 889 of the contested decision that surcharges were ‘measures of general application’ that ‘were intended to be applied on all routes, on a worldwide basis’ and that the same was true of the refusal to pay commission, which was also ‘general in nature’. Those considerations are based on a body of evidence mentioned, in particular, in recitals 140, 162, 210, 250 and 608 of the contested decision; it is apparent from those recitals that the communications of a number of incriminated carriers referred to a worldwide application of surcharges.
267 That implementation took place in the context of a system of multiple central and local levels which is described in paragraphs 230 and 231 above.
268 As the Commission stated in footnote No 1323 to the contested decision, it is true that the local contacts, including the non-EEA/Swiss contacts, took account of ‘local market conditions or regulations’. Those contacts were not, nonetheless, purely prompted, encouraged or required by local regulations, nor did they relate exclusively to legitimate business issues. First, local members of staff received instructions from their head office regarding the implementation of surcharges and reported to it (see recitals 171, 226, 233, 284, 381, 584 and 594 of the contested decision). They were, moreover, bound by the decisions taken at head-office level. Thus, in recital 237 of the contested decision, mention is made of an internal email in which a Qantas employee stated that almost all carriers in Hong Kong had indicated their intention to follow CPA, but that Qantas and several incriminated carriers, including Lufthansa, had stated that they had to seek instructions from their head office before doing the same. In recital 295 of the contested decision, reference is made to the minutes of the BAR CSC meeting of 23 January 2003 in Singapore, which state that ‘member carriers commented that the fuel index has increased, but they have not received any instruction from their head offices to increase the [FSC]’. Similarly, in recital 414 of the contested decision, reference is made to an email from a local CPA manager in Belgium from which it is apparent that SAC ‘claimed initially they would [also increase the FSC on 1 October 2004], but then were [reminded] by [headquarters] to go for [4 October 2004]’, which beforehand had been the subject of a number of contacts at head-office level (recitals 406, 410 and 411).
269 Second, as stated in paragraph 232 above, it is apparent from the contested decision that coordination at local level often immediately followed announcements made at head-office level. By way of illustration, following Lufthansa’s announcement of the introduction of the FSC on 28 December 1999 (recital 138), the issue was addressed in Hong Kong on 10, 13 and 19 January 2000 (recitals 147 to 149) and in India in the same month (recitals 151 and 152). The same is true of Lufthansa’s announcement of 17 February 2003 (recital 274), followed by contacts in Canada (recital 291) and Thailand (recital 298) on the same day and in Singapore on the following day (recital 296). That is also the case for Lufthansa’s announcement of 21 September 2004 (recitals 409 to 411), followed by contacts in Hong Kong on the same day (recital 431) and in Switzerland on 23 and 24 September 2004 (recitals 426 and 427).
270 As for the argument claiming that local members of staff were not aware of coordination at head-office level or that the non-EEA/Swiss contacts might be contrary to competition law, it is not, even if it was proved and in the light of the foregoing, in any way sufficient to demonstrate that there was no link of complementarity between the non-EEA/Swiss contacts and the other contacts at issue.
271 As regards the methods used, it must be noted that the differences between the non-EEA/Swiss contacts and the other contacts at issue do not have the importance that the applicants seek to attribute to them. In recital 107 of the contested decision, the Commission stated that its investigation had ‘uncovered a worldwide cartel based on a network of bilateral and multilateral contacts over a long period among competitors’. In recital 111 of that decision, the Commission stated that the carriers had ‘contacted each other bilaterally, in small groups and in some instances in large multilateral forums’ and had used the local associations of carrier representatives.
272 It is apparent from the contested decision that both the non-EEA/Swiss contacts and the other contacts at issue could take those various forms. It is true that, as the applicants state, a good number of the non-EEA/Swiss contacts, such as those referred to in recitals 665, 666, 668 and 670, took place in official meetings of associations of undertakings. However, some of the other contacts at issue, such as those referred to in recitals 200, 425 and 559 of the contested decision, also took place in such meetings. Similarly, a considerable number of non-EEA/Swiss contacts took place, like other contacts at issue, by way of emails and in bilateral and multilateral meetings and discussions taking place outside trade associations and involving only a limited number of persons (see, for example, recitals 564, 576, 658, 674 and 702).
273 As for the alleged lack of identity between the undertakings involved in the non-EEA/Swiss contacts and those involved in the other contacts at issue, it should be noted that, as the Commission correctly observed in recital 878 of the contested decision, it is not necessary for that identity to be perfect, rather it can be partial (see, to that effect, judgments of 27 February 2014, InnoLux v Commission, T‑91/11, EU:T:2014:92, paragraph 128, and of 9 September 2015, Samsung SDI and Others v Commission, T‑84/13, not published, EU:T:2015:611, paragraph 43). Almost all of the incriminated carriers that participated in the other contacts at issue were amongst the participants in the non-EEA/Swiss contacts. Conversely, the participants in the non-EEA/Swiss contacts that did not participate in the other contacts at issue were generally not amongst the incriminated carriers.
274 As regards the lack of identity between the natural persons involved in the non-EEA/Swiss contacts and those involved in the other contacts at issue, it must be noted that it is merely a consequence of the system of multiple central and local levels, which is described in paragraphs 230 and 231 above. The applicants are not therefore justified in relying on that lack of identity.
275 In any event, it should be noted that the identity between the natural persons involved in the various instances of conduct at issue is not necessary for there to be a single and continuous infringement. Accordingly, since the Commission has, moreover, established to the required standard that the non-EEA/Swiss contacts and the other contacts at issue all fell within the scope of the single and continuous infringement, it must be held that the lack of such identity can in no way be of any consequence.
276 This part of the present plea must therefore be rejected.
2. The WOW contacts
277 The applicants submit that the Commission infringed Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement in finding that the WOW contacts were part of a single and continuous infringement together with the head-office-level contacts.
278 The applicants argue that, first, the WOW contacts pursued a fundamentally different objective from that of the secret head-office-level contacts. The partners of the WOW alliance created in good faith an integrated cargo system in order to provide a single offering based on the principle of metal neutrality (that is, the absence of incentive to favour one’s own cargo services over those of other alliance members). That called for better alignment of their surcharge policies in the context of joint bids and does not therefore support the conclusion that the WOW alliance was used as a cover for broader anticompetitive cooperation.
279 Second, the WOW contacts were different from the head-office-level contacts with unaffiliated carriers in terms of methods used and content. While the head-office-level contacts were generally held privately (by phone or in person) and were, for the most part, bilateral, and involved only a small group of people, the WOW contacts relating to surcharges frequently took place by email and involved all WOW alliance partners and employees, or at least a large number of them, at all levels of their respective organisations. The intention of the WOW alliance to approach the market jointly was, moreover, well known on the market.
280 The Commission disputes the applicants’ arguments.
281 As a preliminary point, it should be noted that the applicants do not seek, in the context of this part of the present plea, to rely on the compatibility of the WOW contacts with Article 101 TFEU, as their arguments merely submit that those contacts did not fall within the scope of the single and continuous infringement.
282 Furthermore, the applicants’ challenge concerns solely, first, the identical objective and nature of the WOW contacts having regard to the head-office-level contacts and, second, the identical content of and methods used in those two categories of contact.
283 Since the applicants have not put forward any argument seeking to explain why it is appropriate, for the purposes of examining this part of the present plea, to disregard the contacts other than the head-office-level contacts, the General Court takes the view that the former should be taken into account (see paragraph 252 above).
284 That having been said, the applicants’ challenge cannot succeed.
285 In the first place, as regards the identical objective and nature of the WOW contacts and of the other contacts that took place in the context of the single and continuous infringement, it should be noted that the Commission, in recital 971 of the contested decision, took the view that ‘the coordination of the surcharges between the WOW [alliance] members was conducted outside the legitimate framework of the alliance’ and thus pursued the same anticompetitive objective, described in paragraph 257 above, as the other contacts at issue.
286 That conclusion follows a detailed analysis of the scope of the WOW alliance and its actual implementation, in the light of which the justification for the WOW contacts was examined (recitals 922 to 970).
287 In the present case, in recitals 947 to 952 of the contested decision, the Commission concluded that none of the initiatives allegedly taken in the context of the WOW alliance justified general coordination on surcharges on the ground that cooperation within that alliance had remained limited, had never reached the stage of an integrated sales and pricing policy and had been confined, in essence, to targeted projects relating to certain routes, certain customers or certain products. In reaching that conclusion, the Commission relied on an analysis of the documents and statements provided during the administrative procedure by the incriminated carriers which were members of the alliance in question. It also referred, in recitals 951 and 952 of the contested decision, to a number of documents in the file which demonstrate that the members of the WOW alliance conducted individual surcharge policies that they were not prepared to set aside for the purposes of that alliance.
288 The arguments put forward by the applicants in the context of this part of the present plea are not capable of calling into question the merits of the conclusions reached by the Commission.
289 This applies to the applicants’ reliance on the need to harmonise the surcharge policies of the members of the WOW alliance when they submitted joint bids. It is apparent from a number of recitals of the contested decision that the scope of the WOW contacts exceeded the framework of the small number of joint bids submitted by the members.
290 Thus, in recital 596 of the contested decision, reference is made to an email from SAC for the attention of Lufthansa and SAS of 1 October 2001 in which SAC states that it will introduce the SSC from 8 October 2001. In addition to the fact that it is not apparent from that email that it is part of a specific draft bid carried out by the WOW alliance, it should be noted that the imminent introduction of an SSC by SAC was discussed from 28 September 2001 in a number of separate forums involving other carriers (see recitals 592 and 594). It is also apparent from the contacts referred to in recitals 401, 434, 484, 494, 497, 512 and 546 of the contested decision that the level of the FSC was discussed at regular intervals between members of the WOW alliance, independently of any alliance-specific project.
291 Accordingly, the applicants’ argument concerning the different objectives and nature of the WOW contacts, inferred from the specific context of the WOW alliance, must be rejected.
292 In the second place, as regards the identical ‘content and methods’ of the WOW contacts and of the other contacts that took place in the context of the single and continuous infringement, it must be noted that the considerations relating to the different forms that the contacts at issue could take, even if they were established, are not, in the light of their minor nature, capable of calling into question the inclusion of the WOW contacts within the scope of the single and continuous infringement. In any event, the applicants in no way substantiate their claim that the form taken by the WOW contacts, on the one hand, and by the other contacts, on the other, was ‘clearly’ different. Moreover, it is apparent from the contested decision that a large number of the contacts other than those between members of the WOW alliance consisted of chains of emails exchanged between multiple recipients. Thus, the specific nature of the WOW contacts alleged by the applicants has no factual basis.
293 In the light of the foregoing, this part of the present plea must be rejected.
3. The contacts relating to the refusal to pay commission
294 The applicants submit that the Commission infringed Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement in finding that the contacts relating to the refusal to pay commission fell within the scope of the single and continuous infringement together with the contacts relating to the FSC and the SSC.
295 In the first place, the applicants submit that the contacts relating to the refusal to pay commission were part of a legal and factual background which was significantly different from that of the head-office-level contacts that formed the core of the single and continuous infringement. The contacts relating to the refusal to pay commission reflected the struggle faced by carriers in finding an adequate response to the collective efforts of freight-forwarder associations to obtain payment of commission following the adoption of IATA Resolution 805zz, which changed the terms of remuneration for freight forwarders and the legal interpretation of which was the subject of debate.
296 In the second place, the applicants argue that the form taken by the contacts relating to the refusal to pay commission shows that there were differences in terms of nature and objectives between those contacts and the contacts relating to surcharges. Thus, unlike the clandestine head-office-level contacts, the majority of the contacts relating to the refusal to pay commission took the form of letters and emails with unambiguous subject lines or of official BAR meetings, many of which expressly referred to the legal and regulatory background.
297 In the third place, the applicants submit that it is wrong to attempt to create a link of complementarity between the coordination on surcharges and any refusal to pay commission. During the relevant period, freight forwarders did not receive commission on either freight rates or surcharges. They earned a margin solely by reselling capacity at a higher price than that at which they bought it. Furthermore, in 2005 freight forwarders did not seek discounts on surcharges, but separate payments.
298 The Commission disputes the applicants’ arguments.
299 As a preliminary point, it should be noted that the applicants do not dispute that the contacts relating to the refusal to pay commission and those relating to surcharges concerned freight services (single service), overlapped significantly as regards the implicated carriers involved (that is to say, those carriers were the same undertakings and there was involvement in the three components of the single and continuous infringement) and involved the same persons. The applicants also do not dispute that the surcharges and the refusal to pay commission frequently were the subject of joint discussions (elements discussed in parallel).
300 The applicants’ challenge concerns solely the identical objective and nature of those two categories of contact.
301 That challenge cannot, however, succeed.
302 In the first place, as regards the existence of a single anticompetitive objective, it is apparent from recital 872 of the contested decision that that objective consisted, for the incriminated carriers, in ‘distorting competition in the airfreight sector in the EEA by coordinating their pricing behaviour with respect to the provision of airfreight services by eliminating competition concerning the charging, amount and timing of the FSC, the SSC and the [refusal to pay commission]’. In recital 874 to the contested decision, the Commission stated that the refusal to pay commission thus sought to reinforce coordination relating to surcharges by ensuring ‘that pricing uncertainty, which could have arisen from competition on commission payments [in the context of negotiations with freight forwarders], remained suppressed’.
303 Contrary to what the applicants submit, there is no difference in terms of legal or factual context between the contacts relating to surcharges and those relating to the refusal to pay commission which is capable of calling that assessment into question.
304 It is, admittedly, clear from recitals 675 to 702 of the contested decision that the issue of the payment of commission was the subject of different legal interpretations between carriers and freight forwarders. However, contrary to what the applicants submit, the incriminated carriers did not merely define a common position on that issue in order to defend it in a coordinated manner before the competent courts or to promote it collectively among public authorities and other trade associations. On the contrary, the incriminated carriers acted in concert with each other by agreeing – at a multilateral level – to refuse to negotiate the payment of commission with freight forwarders or to grant them discounts on surcharges. Thus, in recital 695 of the contested decision, the Commission referred to an email of 19 May 2005 in which a regional manager of Swiss in Italy states that ‘all [the participants in a meeting held on 12 May 2005] confirmed that [they] will not accept any [FSC/SSC] remuneration’. In recital 696 of that decision, mention is made of an internal email of 14 July 2005 in which CPA states that ‘[all of the participants in a meeting held the day before, including the applicants] reconfirmed the firm intention not to accept any negotiation [concerning the payment of commission]’. Furthermore, in recital 700 of the contested decision, the Commission relied on an internal email in which an employee of Cargolux informed its head office that a meeting was held ‘with all [carriers] operating at [Barcelona airport]’ and stated that ‘it was a general opinion that we [should] not pay any [commission] on surcharges’.
305 It is also apparent from the contested decision that a number of carriers exchanged information – at a bilateral level – in order mutually to ensure their continuous commitment to the refusal to pay commission, which they had agreed upon in advance. By way of illustration, recital 688 of that decision describes a telephone conversation of 9 February 2006 during which Lufthansa asked AF whether its position concerning the refusal to pay commission remained unchanged.
306 In the second place, as regards the identical nature of the contacts relating to surcharges and those relating to the refusal to pay commission, contrary to what the applicants submit, the view cannot be taken that the Commission’s reasoning misunderstood the model for the relationship between carriers and freight forwarders by applying the incorrect premiss that freight forwarders received commission on rates or surcharges.
307 Recital 5 of the contested decision reads as follows:
‘… By refusing to pay commission the carriers ensured that surcharges did not become subject to competition through the negotiation of discounts with customers.’
308 Similarly, in recital 879 of the contested decision, the Commission found that the commission was ‘in fact’ discounts on the surcharges, thus showing that it did not endorse the existence of an agency model between carriers and freight forwarders by its use of the word ‘commission’.
309 It is apparent from those two recitals that the Commission analysed the refusal to pay commission as a rates coordination measure the objective of which was to align the conduct of the incriminated carriers, which had to respond to requests for discounts or rebates from their freight-forwarder customers.
310 It is true that, in recital 879 of the contested decision, the Commission also stated that ‘the commission on surcharges … would otherwise have been payable if [the surcharges had been] part of rates’.
311 However, contrary to what the applicants submit, that sentence does not contradict the passages of the contested decision cited in paragraphs 307 and 308 above. First, it is apparent from recitals 675 to 702 of the contested decision that the discounts requested by the freight forwarders from 2004 onwards were presented as commission on the collection of surcharges from shippers and that, in their contacts in that regard, the carriers themselves used the phrases ‘commission’ or ‘remuneration’, as is shown in particular by recitals 681 to 683, 685, 695, 696, 698 and 700 of that decision.
312 It follows that the use of the word ‘commission’ by the Commission to designate the conduct covered by the component at issue of the single and continuous infringement, far from constituting a position on the business relationship model then in force between carriers and freight forwarders, merely reflected the way in which they referred to the discounts sought by freight forwarders from 2004 onwards.
313 The reference to ‘commission on surcharges’ in recital 879 of the contested decision cannot, therefore, be regarded as contradicting the reference in that recital and elsewhere in that decision to ‘discounts on the surcharges’.
314 Second, it should be noted that the reference in recital 879 of the contested decision to the fact that commission would have been payable if the surcharges had been part of the rates is made immediately after the finding that the refusal to pay commission was facilitated by keeping the surcharges ‘as a discrete element of the overall price, distinct from rates’. Read in its context, that reference is therefore to be understood as meaning that the carriers, by making a distinction between surcharges and rates in their invoicing, prevented the discounts, or ‘commission’, which were applicable to the rates, from being applied to the surcharges.
315 Thus, the reference in question, which does not concern discounts on surcharges but rather discounts on rates, does not relate to the nature of the ‘commission on surcharges’ and does not, in particular, support the conclusion that it was agreed upon in advance in the context of an agency relationship.
316 As regards the considerations relating to the various forms that the contacts relating to surcharges and those relating to the refusal to pay commission could take, first, it must be noted that, even if they were established, they are not, in the light of their minor nature, capable of calling into question the inclusion of the refusal to pay commission within the scope of the single and continuous infringement.
317 Second, and in any event, it should be noted that the material in the file does not substantiate the applicants’ arguments. Thus, the contacts relating to the refusal to pay commission often took the same bilateral and ‘clandestine’ form as the contacts relating to surcharges (recitals 682 and 688 of the contested decision). As for the multilateral contacts in which the refusal to pay commission was discussed, they were all far from having the character of ‘unambiguous’ or ‘official’, which the applicants attribute to them. By way of illustration, in recital 695 of the contested decision, the Commission relied on an internal email of 19 May 2005 in which the regional manager of Swiss in Italy stated that carriers representing ‘more than 50% of the market’ had met on 12 May 2005 and had ‘all confirmed that [they] will not accept any [FSC/SSC] remuneration’, while emphasising that that information was ‘strictly confidential especially for antitrust reasons’. In addition, and contrary to what the applicants suggest, the contacts relating to surcharges also took place in official meetings of local associations of carrier representatives, including in the European Union (see paragraph 272 above).
318 In the light of the foregoing, this part of the present plea must therefore be rejected, as must the present plea in its entirety.
F. The fifth plea, alleging incorrect assessment of the effect on trade between Member States
319 The applicants submit that it is not clear that the non-EEA/Swiss contacts relating to inbound freight services had a sufficiently appreciable effect on trade between Member States. The applicants put forward three arguments in support of that claim.
320 In the first place, the applicants submit that the Commission did not sufficiently analyse whether there were such effects, which could not, moreover, be inferred from the mere existence of a restriction of competition.
321 In the second place, the applicants submit that the Commission ignored Section 3.3.3 of the Guidelines on the effect on trade concept contained in Articles [101] and [102 TFEU] (OJ 2004 C 101, p. 81; ‘the Guidelines on the effect on trade concept’), from which it is apparent that it is necessary to carry out a more detailed analysis of the effect on trade between Member States of agreements and practices the object of which is not to restrict competition in the European Union. However, the Commission failed to carry out such an analysis of the effects on trade between Member States of the non-EEA/Swiss contacts relating to inbound freight services.
322 In the third place, the applicants submit that the Commission’s analysis does not comply with the requirements outlined in the Opinion of Advocate General Wahl in Intel Corporation v Commission (C‑413/14 P, EU:C:2016:788, point 302), from which it is apparent, in essence, that Article 101 TFEU covers collective conduct of undertakings that takes place entirely outside the borders of the European Union only to the extent that a direct (or immediate), substantial and foreseeable anticompetitive effect within the internal market can be detected.
323 The Commission disputes the applicants’ arguments.
324 As a preliminary point, it must be noted that there is no reason to limit the examination of the present plea solely to the non-EEA/Swiss contacts, thus excluding the other contacts relating to inbound services.
325 That said, it should be recalled that, as is already clear from the wording of Article 101(1) and Article 102 TFEU, in order for the EU competition rules to apply to an arrangement or abusive practice it is necessary for it to be capable of affecting trade between Member States (judgment of 13 July 2006, Manfredi and Others, C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 40).
326 That condition must be interpreted and applied in the light of its purpose, which is to define, in the context of the law governing competition, the boundary between the areas respectively covered by EU law and the law of the Member States. Thus, EU law covers any agreement or any practice which is capable of constituting a threat to freedom of trade between Member States in a manner which might harm the attainment of the objectives of a single market between the Member States, in particular by sealing off national markets or by affecting the structure of competition on the internal market (judgment of 13 July 2006, Manfredi and Others, C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 41).
327 For an agreement, decision or practice to be capable of affecting trade between Member States, it must accordingly be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or of fact, that they may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that they might hinder the attainment of a single market between Member States (judgment of 13 July 2006, Manfredi and Others, C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 42).
328 According to the case-law, that influence must not be insignificant (see judgment of 28 February 2013, Ordem dos Técnicos Oficiais de Contas, C‑1/12, EU:C:2013:127, paragraph 65 and the case-law cited) or, in other words, it must be appreciable (see, to that effect, judgment of 16 June 2011, Ziegler v Commission, T‑199/08, EU:T:2011:285, paragraph 44).
329 However, as the Commission correctly found in recital 1026 of the contested decision, it is not necessary for the individual conduct of all the parties to the agreement, as opposed to the agreement as a whole, to have had a significant or appreciable influence on trade between Member States (see, to that effect, judgment of 10 March 1992, ICI v Commission, T‑13/89, EU:T:1992:35, paragraph 304). As the Commission notes in its written submissions, it is also not necessary for each component of an agreement, taken in isolation, to be capable of having such an influence on trade between Member States. It is the agreement as a whole which must be capable of having such an influence (see, to that effect, judgment of 14 May 1997, VGB and Others v Commission, T‑77/94, EU:T:1997:70, paragraph 126). Such an overall examination is also justified in the case of a single and continuous infringement (see, to that effect, judgment of 24 September 2009, Erste Group Bank and Others v Commission, C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P, EU:C:2009:576, paragraphs 55 to 59).
330 In Article 1 and in recitals 1 and 869 to 902 of the contested decision, the Commission concluded that there was a single and continuous infringement encompassing all of the contacts at issue, whether or not they took place within the EEA, and all of the routes concerned, whether they were inbound, outbound, intra-EEA or between the European Union and Switzerland. It has not been shown that the Commission erred by doing so. The Commission was therefore in no way required to examine in isolation the effect on trade between Member States of the non-EEA/Swiss contacts relating to inbound freight services. It was entitled, on the contrary, in recitals 1028 to 1031 and 1033 of the contested decision, to assess the impact on trade between Member States of the single and continuous infringement as a whole.
331 It is therefore necessary to determine whether the Commission was justified in concluding, in recital 1035 of the contested decision, that the single and continuous infringement, taken as a whole, was likely to have an appreciable effect on trade between Member States.
332 In that regard, it should be borne in mind that the assessment of whether a decision, agreement or practice has a significant or appreciable effect on trade between Member States must be carried out in the light of the circumstances of each case. It must be carried out in the light of the economic and legal context of that decision, agreement or practice (see, to that effect, judgment of 23 November 2006, Asnef-Equifax and Administración del Estado, C‑238/05, EU:C:2006:734, paragraph 35).
333 Such an assessment is thus to be carried out in particular in the light of the position and the importance of the parties on the market for the products concerned (see, to that effect, judgment of 28 April 1998, Javico, C‑306/96, EU:C:1998:173, paragraph 17). Other factors may also be taken into account, such as the turnover figures of the parties (see, to that effect, judgment of 7 June 1983, Musique Diffusion française and Others v Commission, 100/80 to 103/80, EU:C:1983:158, paragraph 86) or the nature of the agreement or of the products or services in question (see, to that effect, judgments of 16 June 1981, Salonia, 126/80, EU:C:1981:136, paragraph 17, and of 1 April 1993, BPB Industries and British Gypsum v Commission, T‑65/89, EU:T:1993:31, paragraph 138).
334 As regards agreements and practices that, first, had the object of restricting competition at least in the European Union, the EEA and Switzerland (recital 903 of the contested decision); second, ‘covered the whole EEA area as well as Switzerland’ and concerned intra-EEA routes, routes between the parties to the EEA Agreement and the routes between parties to the EC-Switzerland Air Transport Agreement (recital 1030 of the contested decision); third, concerned a cross-border service the price of which is a significant cost element of the goods the transport of which is the aim of that service (recitals 76 and 1031 of the contested decision); and, fourth, brought together carriers with significant market shares (recital 1209 of the contested decision) and turnover ranging from several hundreds of millions to several tens of billions of euros (recitals 21, 26, 32, 35, 38, 41, 45, 48, 52, 56, 59, 64 and 67 of the contested decision), there is little doubt that, taken as a whole, the single and continuous infringement was liable to have an appreciable effect on trade between Member States.
335 It follows that the Commission did not err in concluding, in recital 1035 of the contested decision, that the single and continuous infringement was likely ‘appreciably’ to affect trade between Member States.
336 None of the applicants’ arguments is capable of calling that conclusion into question.
337 In the first place, paragraph 106 of the Guidelines on the effect on trade concept, to which the applicants refer, provides that, in the case of agreements whose object is not to restrict competition inside the internal market, it is normally necessary to proceed with a ‘more detailed’ analysis of whether or not cross-border economic activity within the internal market, and thus patterns of trade between Member States, are capable of being affected. It is apparent from recital 903 of the contested decision that the single and continuous infringement ‘had the object of restricting competition at least in the [European Union], the EEA, and Switzerland’. The applicants are therefore not justified in relying on paragraph 106 of the Guidelines on the effect on trade concept.
338 In the second place, as regards point 302 of the Opinion of Advocate General Wahl in Intel Corporation v Commission (C‑413/14 P, EU:C:2016:788), it is sufficient to note that it relates not to the concept of an effect on trade between Member States within the meaning of Article 101(1) TFEU, but to the issue of the Commission’s territorial jurisdiction under the qualified effects test. Contrary to what the applicants submitted at the hearing, those are separate issues, the former relating to the definition of the boundary between the areas respectively covered by EU competition law and the competition law of the Member States (see paragraph 326 above) and the latter concerning the justification for the Commission’s having jurisdiction under public international law (see paragraph 84 above).
339 The present plea must therefore be rejected.
G. The sixth plea, alleging errors in the assessment of the State coercion to which the applicants were subject in a number of third countries
340 The sixth plea, in which the applicants allege that the Commission erred in its assessment of the State coercion to which they were subject in a number of third countries, is divided into three parts. Those parts allege, first, errors in the application of the State-coercion defence to the regulatory regimes of third countries, second, a manifest error of assessment as a result of the Commission’s failure to take into account the letter from the Hong Kong Civil Aviation Department (‘CAD’) of 3 September 2009 and, third, a manifest error of assessment with respect to the residual freedom of carriers to file individual applications to third-country authorities.
1. The first part of the plea, alleging errors in the application of the State-coercion defence to the regulatory regimes of third countries
341 The applicants submit that the interpretation and application of the State-coercion defence varies depending on whether or not the State in question is a Member State.
342 In the first place, under the principle of legal certainty, account should be taken of the fact that, unlike the authorities of a Member State of the European Union, the authorities of a third country are not required to observe EU competition rules. In the event of a contradiction between those rules and the regulatory rules of third countries, undertakings cannot rely on compliance with EU law as a defence before the Commission or in national proceedings and the authorities of third countries would not accept that EU law prevails over local legislation. Undertakings should therefore have greater scope to argue that they are facing anticompetitive State coercion.
343 In the second place, imposing an obligation on undertakings to demonstrate that they are subject to third-country coercion raises practical and evidentiary issues. The Commission and the General Court do not have jurisdiction to interpret the law of third countries or to assess its compatibility with EU law. In addition, it is difficult for undertakings to furnish proof of State coercion, since the authorities of a third country are not in the habit of justifying in writing the compatibility of their legislation with EU competition rules.
344 In the third place, under the principle of international comity, where an undertaking furnishes prima facie evidence that its conduct was required by the authorities of a third country, the Commission should inquire with those authorities before it can find anticompetitive conduct, which it failed to do in the present case before adopting the contested decision. Moreover, during the administrative procedure and in the light of the letters sent to it by the Dubai Civil Aviation Authority, the Commission withdrew references to the contacts between carriers which took place in Dubai.
345 The Commission disputes those arguments.
346 It should be noted at the outset that Article 101(1) TFEU applies only to anticompetitive conduct engaged in by undertakings on their own initiative. If anticompetitive conduct is required of undertakings by national legislation or if the latter creates a legal framework which itself eliminates any possibility of competitive activity on their part, Article 101 TFEU does not apply. In such a situation, the restriction of competition is not attributable, as that provision implicitly requires, to the autonomous conduct of the undertakings (see judgment of 11 November 1997, Commission and France v Ladbroke Racing, C‑359/95 P and C‑379/95 P, EU:C:1997:531, paragraph 33 and the case-law cited).
347 Conversely, if national legislation does not preclude undertakings from engaging in autonomous conduct which prevents, restricts or distorts competition, Article 101 TFEU may apply. In the absence of any binding regulatory provision imposing anticompetitive conduct, the Commission is entitled to conclude that the operators in question enjoyed no autonomy only if it appears on the basis of objective, relevant and consistent evidence that that conduct was unilaterally imposed upon them by the national authorities through the exercise of irresistible pressures, such as, for example, the threat to adopt State measures likely to cause them to sustain substantial losses (see judgment of 11 December 2003, Minoan Lines v Commission, T‑66/99, EU:T:2003:337, paragraphs 177 and 179 and the case-law cited).
348 According to the case-law, this is not the case where a law or conduct is limited to encouraging or facilitating autonomous anticompetitive conduct by undertakings (see, to that effect, judgment of 14 December 2006, Raiffeisen Zentralbank Österreich and Others v Commission, T‑259/02 to T‑264/02 and T‑271/02, EU:T:2006:396, paragraph 258).
349 Lastly, it is clear from the case-law that it is for the undertakings concerned to demonstrate that a State law or State conduct was of such a kind as to deprive them of all independent choice in their commercial policy (see, to that effect, judgment of 7 October 1999, Irish Sugar v Commission, T‑228/97, EU:T:1999:246, paragraph 129). Whereas it is for the authority alleging an infringement of the competition rules to prove it, it is for the undertaking raising a defence against a finding of an infringement of those rules to demonstrate that the conditions for applying the rule on which such defence is based are satisfied, so that the authority will then have to resort to other evidence (see judgment of 16 February 2017, Hansen & Rosenthal and H&R Wax Company Vertrieb v Commission, C‑90/15 P, not published, EU:C:2017:123, paragraph 19 and the case-law cited).
350 Contrary to what the applicants submit, those principles are also applicable where the regulatory regimes of third countries are at issue (see, to that effect, judgment of 30 September 2003, Atlantic Container Line and Others v Commission, T‑191/98 and T‑212/98 to T‑214/98, EU:T:2003:245, paragraph 1131), as is apparent, in essence, from footnote No 1435 to the contested decision.
351 The applicants have not put forward any argument which is capable of calling into question the applicability of those principles to the present case.
352 In the first place, contrary to what the applicants submit, it is apparent from the case-law cited in paragraphs 346 to 348 above that the State-coercion defence is justified not by the principle of sincere cooperation or primacy of EU law, but by the lack of independent choice of the undertakings concerned in their commercial policy, justifying the inapplicability of Article 101 TFEU.
353 While it is true that, unlike third countries, the Member States are required not to introduce or maintain in force measures which may render ineffective the competition rules applicable to undertakings (judgment of 9 September 2003, CIF, C‑198/01, EU:C:2003:430, paragraph 45), the fact remains that, in the context of an examination of the applicability of Article 101 TFEU to the conduct of undertakings that complies with legislation of a Member State, a prior evaluation of that legislation should be directed solely to ascertaining whether it leaves open the possibility of competition which may be prevented, restricted or distorted by the autonomous conduct of the undertakings so that its compatibility with the Treaty rules on competition cannot be regarded as decisive (see, to that effect, judgment of 11 November 1997, Commission and France v Ladbroke Racing, C‑359/95 P and C‑379/95 P, EU:C:1997:531, paragraphs 31 and 35).
354 As regards the principle of legal certainty and, in particular, the risk of conflicts between EU law and that of third countries, they do not justify the State-coercion defence being interpreted less restrictively where the legislation or conduct at issue is not that of a Member State, but that of a third country. As the Commission correctly contends, according to that defence, Article 101 TFEU is applicable only to anticompetitive conduct engaged in by economic operators which is not made compulsory by local regulatory regimes. It follows that there is, in principle, no risk of conflict between the rules of EU law and those of the third country concerned.
355 In the second place, the applicants are wrong to submit that the application of the State-coercion defence to cases where the legislation or conduct of a third country is at issue raises significant practical and evidentiary issues.
356 First of all, contrary to what the applicants submit, it is apparent from the case-law cited in paragraph 353 above that, in the context of the examination of the applicability of Article 101 TFEU to the conduct of undertakings that complies with State legislation, as the case may be that of a third country, the Commission does not interpret that legislation in order to assess its compatibility with the Treaty rules on competition, but merely assesses the extent to which that legislation limits the independent choice of the undertakings concerned in their commercial policy. In an action based on Article 263 TFEU, the General Court reviews, for its part, the legality of that assessment.
357 Next, it is consistent with the general principles relating to the burden of proof to require the undertakings concerned to establish that there is State coercion justifying the inapplicability of Article 101 TFEU (see paragraph 349 above). The fact that the State-coercion defence involves establishing that there is coercion arising from the legislation or conduct of a third country does not in any way justify reversing the burden of proof.
358 In the third place, the application of Article 101 TFEU to conduct engaged in by undertakings that took place and was implemented in third countries is justified under public international law where it is foreseeable that that conduct will have immediate and substantial effects in the European Union (see, to that effect, judgment of 12 July 2018, Viscas v Commission, T‑422/14, not published, EU:T:2018:446, paragraph 101 and the case-law cited).
359 By contrast, contrary to what the applicants submit, there is no principle of public international law which obliges the Commission, where the undertakings in question have adduced prima facie evidence of State coercion, to contact the authorities of the third country concerned in order to obtain additional information. Where such prima facie evidence is adduced, it is simply for the Commission, in accordance with the case-law cited in paragraph 349 above, to resort to other evidence. Thus, the prevailing principle under EU law is that evidence may be freely adduced and the only relevant criterion for the purpose of assessing the evidence adduced is its credibility (see, to that effect, judgment of 27 April 2017, FSL and Others v Commission, C‑469/15 P, EU:C:2017:308, paragraph 38).
360 The mere circumstance that the Commission, during the administrative procedure, could have relied on the letters from the Dubai authorities adduced by the applicants before the General Court to support the view that Article 101 TFEU was inapplicable to the contacts that took place in Dubai, even if it were to be established, does not mean that the Commission was under an obligation to solicit those authorities.
361 It follows from the foregoing that this part of the present plea must be rejected.
2. The second part of the plea, alleging a manifest error in the assessment of the letter from the Hong Kong CAD of 3 September 2009
362 The applicants submit that recital 990 of the contested decision, from which it is apparent that the Commission does not consider that a requirement to discuss rates was imposed on the carriers in Hong Kong, is contradicted by the letter of 3 September 2009, which the Hong Kong CAD addressed to the Commission. In the reply, the applicants add that it is apparent from the defence that, in the contested decision, the Commission relied entirely on a statement made by Qantas that that carrier obtained individual approval for its FSC in October 2006, although that statement was never made available to them.
363 The Commission disputes those arguments.
364 In the first place, as regards the arguments raised in the reply, it must be noted that, contrary to what the applicants submit, first, it is not apparent from the Commission’s defence that the contested decision is based entirely on a statement made by Qantas relating to the approval of an individual application for FSC in October 2006 and, second, recitals 973 and 1340 to 1343 of the contested decision, referred to in the applicants’ written submissions, do not mention a statement made by Qantas or the fact that an individual application for FSC was approved in October 2006. Consequently, the applicants’ arguments raised in the reply must be rejected.
365 In the second place, it is apparent from recital 988(c) of the contested decision that the Hong Kong CAD sent to the President of the Commission a letter dated 5 September 2008 in which it stated that collective applications of carriers relating to the FSC were both lawful and desirable in administrative terms without, however, mentioning any prohibition imposed on carriers on filing an individual application. In recital 992 of the contested decision, the Commission took the view that the CAD was not prepared to accept individual applications for an FSC mechanism, but that it was prepared to accept individual applications for a fixed amount of FSC.
366 Contrary to what the applicants submit, it is not apparent from the letter from the CAD of 3 September 2009 addressed to the Commission relating to the rates negotiations involving the Hong Kong BAR CSC that that assessment is incorrect.
367 That letter reads as follows:
‘The Commission should be absolutely clear that, in respect of the [FSC] index-based mechanism, we required that the BAR-CSC and the participating carriers agree on the details of the collective applications, including the amount of the surcharge for which approval was sought, the evidence to be provided to CAD supporting the applications and the single mechanism to be used for determining the surcharge. The CAD also mandated and required the participating carriers to levy specifically the surcharge approved. Moreover, we mandated and required BAR-CSC to submit for approval to CAD any change in the list of carriers participating in the collective applications and we made it clear that such carriers should not levy any [FSC] without CAD’s express approval to BAR-CSC.’
368 That letter thus merely sets out the conditions required by the CAD where the BAR CSC and the carriers envisage an index-based collective application relating to the FSC. However, it does not refer to a general obligation to file a collective application for an FSC or to the impossibility of filing an individual application for a fixed FSC.
369 Consequently, this part of the present plea must be rejected.
3. The third part of the plea, alleging a manifest error in the assessment of the residual freedom of carriers to file individual applications with authorities of third countries
370 The applicants submit that, when analysing the regulatory regime of third countries, the Commission focused on the fact that applications for approval of surcharges to local authorities took the form of collective applications and not that of individual applications. However, for the purposes of applying Article 101 TFEU, the collective or individual nature of the applications is irrelevant for the purpose of assessing a restriction on the freedom of undertakings to compete on the market. In the context of a system of prior authorisation of rates which has as its object the limitation of competition between carriers, the competent authority of a third country could easily refuse individual applications if the surcharge for which approval was sought proved to be different from that applied by other carriers in the country concerned and ultimately require carriers to coordinate their rates.
371 In addition, the Commission found that the carriers had had multilateral contacts regarding surcharges, whereas the applicable ASAs provided only for bilateral consultations involving the designated national carrier. However, according to the applicants, a network of bilateral discussions on the amount of surcharges to be applied, in accordance with the rates clauses of the ASAs, would in all likelihood have produced the same outcome as the multilateral discussions that in fact took place at the request of the competent civil aviation authorities.
372 The Commission disputes the applicants’ arguments.
373 The applicants’ arguments cannot succeed.
374 In the first place, it is apparent from recital 992 of the contested decision that, after admitting that the administrative practice of the Hong Kong CAD might have encouraged carriers to submit collective applications for approval of their rates, the Commission noted that it nevertheless remained possible for carriers to submit individual applications. In recital 1009 of the contested decision, the Commission noted that applications were made to the Japanese authorities on an individual rather than on a collective basis.
375 The purpose of those recitals was to determine whether it was apparent from the administrative practices of Hong Kong or from Japanese law that carriers were under an obligation to coordinate their rates. In that context, contrary to what the applicants submit, the Commission was entitled, in order to establish the applicability of Article 101 TFEU, to find that carriers could avoid submitting collective applications relating to their rates, which require prior consultation in order to establish the rates for which approval is sought, by favouring the submission of an individual application.
376 As for the argument that a competent authority could, in practice, investigate a series of individual applications in a manner which obliges carriers to coordinate their rates, that is, as the Commission rightly notes, a purely hypothetical claim, and the applicants have not shown that that claim reflects the practices of the third countries concerned. Such an argument cannot therefore effectively contradict the contested decision.
377 In the second place, it is also to no avail that the applicants submit that a network of bilateral discussions on the amount of surcharges to be applied pursuant to the ASAs applicable in Japan and in other third countries would have produced the same outcome as multilateral discussions. As noted in recitals 986, 1007, 1012 and 1019 of the contested decision, the rates clauses of the ASAs at issue do not require multilateral discussions on the rates applicable to different routes. At most, those clauses provide that designated carriers are to consult other carriers which operate over the whole or part of the same route or are to take account of the rates charged by those other carriers before entering into rates agreements. Moreover, although the combined effect of the ASAs, which was mentioned by the applicants, could explain the existence of contacts between designated carriers and different designated carriers from other countries to establish rates applicable to a number of routes, it cannot justify multilateral exchanges on the scale of those referred to in the contested decision, which consisted of direct contacts between a number of incriminated carriers which did not necessarily involve the designated carrier concerned.
378 It follows from the foregoing that this part of the present plea must be rejected and, consequently, the sixth plea must be rejected in its entirety.
379 The action must therefore be dismissed in its entirety.
IV. Costs
380 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
381 Under Article 135(1) of the Rules of Procedure, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing its own, or even that it is not to be ordered to pay any. Furthermore, under Article 135(2) of those rules, the Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if that party has made the opposite party incur costs which the Court holds to be unreasonable or vexatious.
382 In the present case, the applicants have been unsuccessful and the Commission has expressly applied for costs. However, the Court considers that the circumstances of the case justify ordering the Commission to bear one third of its own costs and the applicants to bear their own costs and pay two thirds of those incurred by the Commission.
On those grounds,
THE GENERAL COURT (Fourth Chamber, Extended Composition)
hereby:
1. Dismisses the action;
2. Orders the European Commission to bear one third of its own costs;
3. Orders Deutsche Lufthansa AG, Lufthansa Cargo AG, Swiss International Air Lines AG to bear their own costs and to pay two thirds of those incurred by the Commission.
Kanninen | Schwarcz | Iliopoulos |
Delivered in open court in Luxembourg on 30 March 2022.
Table of contents
I. Background
A. The administrative procedure
B. The Decision of 9 November 2010
C. The action challenging the Decision of 9 November 2010 before the General Court
D. Contested decision
II. Procedure and forms of order sought
III. Law
A. The first plea, alleging infringement of the obligation to state reasons
B. The fourth plea, alleging lack of jurisdiction on the part of the Commission to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes
1. The effects of coordination in relation to inbound freight services taken in isolation
(a) The relevance of the effect at issue
(b) The foreseeability of the effect at issue
(c) The substantiality of the effect at issue
(d) The immediacy of the effect at issue
2. The effects of the single and continuous infringement taken as a whole
C. The plea, raised of the General Court’s own motion, alleging lack of jurisdiction on the part of the Commission in the light of the EC-Switzerland Air Transport Agreement to find and penalise an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes
D. The second plea, alleging infringement of Article 11(2) of the EC-Switzerland Air Transport Agreement and failure to observe the principle of international comity and the principle of non-retroactivity of criminal laws
E. The third plea, alleging infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement
1. The non-EEA/Swiss contacts
2. The WOW contacts
3. The contacts relating to the refusal to pay commission
F. The fifth plea, alleging incorrect assessment of the effect on trade between Member States
G. The sixth plea, alleging errors in the assessment of the State coercion to which the applicants were subject in a number of third countries
1. The first part of the plea, alleging errors in the application of the State-coercion defence to the regulatory regimes of third countries
2. The second part of the plea, alleging a manifest error in the assessment of the letter from the Hong Kong CAD of 3 September 2009
3. The third part of the plea, alleging a manifest error in the assessment of the residual freedom of carriers to file individual applications with authorities of third countries
IV. Costs