Judgment of the General Court (Fourth Chamber, Extended Composition) of 30 March 2022 – Air France v Commission
(Case T‑338/17) (1)
(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 airfreight services (fuel surcharge, security surcharge, payment of commission on surcharges) – Exchange of information – Territorial jurisdiction of the Commission – Single and continuous infringement – Conditions for granting immunity – Equal treatment – Obligation to state reasons – Amount of the fine – Value of sales – Gravity of the infringement – Duration of the participation in the infringement – Mitigating circumstances – Encouragement of the anticompetitive conduct by public authorities – Proportionality – Unlimited jurisdiction)
1. Competition – Transport – Competition rules – Air transport – Regulation No 411/2004 – Scope – EU-third country routes and non-EU EEA-third country routes – Inbound airfreight services – Included
(Arts 101 and 102 TFEU; EEA Agreement, Arts 53 and 54 and Annex XIII and Protocol 21, as amended by EEA Joint Committee Decision No 40/2005; Council Regulations No 1/2003, Art. 32(c), and No 411/2004, Arts 1 and 3)
(see paragraphs 79-94)
2. Competition – EU rules – Territorial scope – Competence of the Commission – Conformity with public international law – Implementation or qualified effects of abusive practices in the EEA – Alternative methods – Criterion of the immediate, substantial and foreseeable effect – Scope in the case of conduct having the object of restricting competition
(Art. 101 TFEU; EEA Agreement, Art. 53)
(see paragraphs 96-98, 113, 115-124, 135-137, 153-155, 164-171)
3. Action for annulment – Pleas in law – Lack of competence of the institution which adopted the contested measure – Examination by the EU judicature of its own motion – Condition – Compliance with the principle that the parties should be heard
(Art. 263 TFEU)
(see paragraphs 184, 185)
4. Competition – Administrative procedure – Commission decision finding an infringement – Use of information and evidence provided by an undertaking in an immunity application – Whether permissible regardless of the outcome of the leniency application
(Art. 101 TFEU; EEA Agreement, Art. 53; EC-Switzerland Air Transport Agreement, Art. 8, Commission Notices 2002/C 45/03, points 11(b), and 33, and 2006/C 210/02, points 31 and 37)
(see paragraphs 214-226)
5. Competition – Fines – Assessment by reference to the individual conduct of the undertaking – Irrelevant that no sanction brought against another economic operator – None – Compliance with the principle of equal treatment having to be reconciled with the principle of legality – Scope of the obligation to state reasons
(Arts 101 and 296 TFEU; EEA Agreement, Art. 53; EC-Switzerland Air Transport Agreement, Art. 8; Charter of Fundamental Rights of the European Union, Art. 20)
(see paragraphs 235, 239, 240, 245-249)
6. Competition – Fines – Amount – Determination – Determination of the basic amount – Determination of the value of sales – Sales carried out in direct or indirect relation to the infringement – Cartel in the airfreight services sector – Cartel covering several elements of the price of freight services – Taking into account of the full amount of sales related to freight services – Whether permissible – Breach of the principle of proportionality and of the principle that offences and penalties must be defined by law – None
(Art. 101 TFEU; EEA Agreement, Art. 53; EC-Switzerland Air Transport Agreement, Art. 8; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, points 6 and 13)
(see paragraphs 289-296, 298-309, 311-318)
7. Competition – Fines – Amount – Determination – Determination of the basic amount – Determination of the value of sales – Account taken only of the value of sales carried out in direct or indirect relation to the infringement in the geographical sector concerned – Sales carried out within the territory of the European Economic Area – Cartel in the airfreight services sector – Taking into account of the value of sales of inbound freight services – Whether permissible
(Art. 101 TFEU; EEA Agreement, Art. 53; EC-Switzerland Air Transport Agreement, Art. 8, Council Regulation No 1/2003, Art. 23(2), Commission Notice 2006/C 210/02, point 13)
(see paragraphs 327-339)
8. Competition – Fines – Amount – Determination – Determination of the basic amount – Gravity of the infringement – Criteria for assessment – Nature of the infringement – Horizontal cartel concerning prices – Inherent seriousness of such an offence justifying the application of a high gravity factor
(Art. 101 TFEU; EEA Agreement, Art. 53; EC-Switzerland Air Transport Agreement, Art. 8; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, points 19 to 23)
(see paragraphs 358-363)
9. Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission – Extent of the burden of proof – Proof of the infringement having been interrupted
(Art. 101 TFEU; EEA Agreement, Art. 53; EC-Switzerland Air Transport Agreement, Art. 8, Council Regulation No 1/2003, Arts 2 and 23(2) and (3))
(see paragraphs 421-434)
10. Competition – Fines – Amount – Determination – Adjustment of the basic amount – Mitigating circumstances – Participation allegedly under pressure – Extent of the Commission’s obligation to state reasons
(Arts 101(1) and 296 TFEU; EEA Agreement, Art. 53; EC-Switzerland Air Transport Agreement, Art. 8; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 29)
(see paragraphs 440, 441, 451-463)
11. Competition – Fines – Amount – Determination – Judicial review – Unlimited jurisdiction of the EU judicature – Scope – Limit – Compliance with the principle of non-discrimination – Account taken of the Guidelines on the method of setting fines
(Art. 261 TFEU; Council Regulation No 1/2003, Art. 31; Commission Notice 2006/C 210/02)
(see paragraphs 473-479)
Operative part
The Court:
2. | | Orders the European Commission to bear one third of its own costs; |
3. | | Orders Société Air France to bear its own costs and to pay two thirds of the costs incurred by the Commission. |