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 airfreight services (fuel surcharge, security surcharge, payment of commission on surcharges) – Exchange of information – Territorial jurisdiction of the Commission – Rights of the defence – Limitation period – State constraint – Single and continuous infringement – Amount of the fine – Value of sales – Gravity of the infringement – Mitigating circumstances – Encouragement of anticompetitive behaviour by public authorities – Substantially reduced participation – Proportionality – Unlimited jurisdiction)
In Case T‑343/17,
Cathay Pacific Airways Ltd, established in Hong Kong (China), represented by R. Kreisberger, QC N. Grubeck, Barrister, M. Rees, Solicitor, and E. Estellon, lawyer,
applicant,
v
European Commission, represented by A. Dawes and C. Urraca Caviedes, acting as Agents, and by J. Holmes QC,
defendant,
APPLICATION pursuant to Article 263 TFEU for the annulment 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 applicant and, in the alternative, for a reduction in the fine imposed on it,
THE GENERAL COURT (Fourth Chamber, Extended Composition),
composed of H. Kanninen (Rapporteur), President, J. Schwarcz, C. Iliopoulos, D. Spielmann and I. Reine, Judges,
Registrar: M. Marescaux, Administrator,
having regard to the written part of the procedure and further to the hearing on 5 July 2019,
gives the following
Judgment
I. Background to the dispute
1 The applicant, Cathay Pacific Airways Ltd, is an airline.
2 The applicant provides airfreight (‘freight’) services through one of its divisions, named Cathay Pacific Cargo.
3 In the freight sector, airlines provide for the carriage of cargo by air (‘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 the 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.
4 There are four different types of carrier: first, those which exclusively operate dedicated freighter airplanes, secondly, those with cargo capacity on passenger flights, thirdly, those with both dedicated freighter airplanes and with cargo capacity on passenger flights (combination airlines) and, fourthly, integrators with dedicated freighter airplanes providing both integrated express delivery services and general cargo services.
5 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 Deutsche Lufthansa AG (‘Lufthansa’), SAS Cargo Group A/S (‘SAS Cargo’), Singapore Airlines Cargo Pte Ltd (‘SAC’) and Japan Airlines International Co. Ltd (‘Japan Airlines’).
A. Administrative procedure
6 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 Lufthansa and its subsidiaries, Lufthansa Cargo AG and Swiss International Air Lines AG (‘Swiss’). The application alleged that extensive anticompetitive contacts were being maintained between a number of carriers with regard 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.
7 On 14 and 15 February 2006, the Commission carried out unannounced inspections at the premises of various 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).
8 Following the inspections, a number of carriers, including the applicant, made an application under the 2002 notice referred to in paragraph 6 above.
9 On 19 December 2007, after sending a number of requests for information, the Commission addressed a statement of objections to 27 carriers, including the applicant (‘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’).
10 The addressees of that statement of objections submitted written observations in reply.
11 An oral hearing was held from 30 June to 4 July 2008.
B. The Decision of 9 November 2010
12 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’);
– the applicant;
– 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’).
13 The objections raised provisionally against the other addressees of the Statement of Objections were abandoned.
14 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 territory of the EEA and of Switzerland, by which the carriers incriminated in the Decision of 9 November 2010 had coordinated their behaviour as regards the pricing of freight services.
15 The operative part of the 2010 Decision, in so far as it related to the applicant, read as follows:
‘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 airfreight services on routes between airports within the European Union and airports outside the EEA, for the following periods:
…
(g) [the applicant] from 1 May 2004 until 14 February 2006;
…
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 airfreight 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:
…
(g) [the applicant] from 19 May 2005 until 14 February 2006;
…
Article 5
For the infringements referred to in Articles 1 to 4 [of the Decision of 9 November 2010], the following fines are imposed:
…
(g) [the applicant]: EUR 57 120 000;
…
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. Action challenging the Decision of 9 November 2010 before the Court
16 By application lodged at the Registry of the General Court on 21 January 2011, the applicant brought an action for annulment of the Decision of 9 November 2010 in so far as that decision concerned it and, in the alternative, a reduction in the amount of the fine imposed on it. The other carriers incriminated in the Decision of 9 November 2010, with the exception of Qantas, also brought actions against that decision before the Court.
17 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 Court annulled, in whole or in part, the Decision of 9 November 2010 in so far as it concerned, respectively, Air Canada, KLM, Japan Airlines and Japan Airlines Corp., the applicant, Cargolux, Latam Airlines Group SA (formerly Lan Airlines) and Lan Cargo, SAC and SIA, Lufthansa, Lufthansa Cargo and Swiss, British Airways, SAS Cargo, SAS Consortium and SAS, AF-KLM, AF and Martinair. The Court found that the decision was vitiated by a defective statement of reasons.
18 In that regard, the 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 of 9 November 2010 was consistent with the grounds for the decision.
19 The Court also rejected as incompatible with the grounds of the Decision of 9 November 2010 the alternative reading of the 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 the 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.
20 In the second place, the General Court held that the grounds of the 2010 Decision contained significant internal inconsistencies.
21 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 Court considered whether, in the context of at least one of those two possible readings, the internal contradictions of that decision were likely to undermine the applicant’s rights of defence and prevent the Court from conducting its review. As regards the first reading, namely that there were four separate single and continuous infringements, first of all, the Court held that the applicant 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 applicant had not been able to understand the line of reasoning that had led the Commission to find it liable for an infringement, including for routes which it did not operate within the parameters defined by each article of the Decision of 9 November 2010.
D. Contested decision
22 On 20 May 2016, following the annulment ordered by the 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 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 in relation to all of the routes referred to in that decision.
23 The recipients of the Commission’s letter referred to in paragraph 22 above were invited to make known their views on the Commission DG for Competition’s intended decision within one month. All recipients, including the applicant, availed themselves of that possibility.
24 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;
– the applicant;
– Japan Airlines;
– Latam Airlines Group;
– Lan Cargo;
– Lufthansa Cargo;
– Lufthansa;
– Swiss;
– Martinair;
– SAS;
– SAS Cargo;
– SAS Consortium;
– SAC;
– SIA.
25 In the contested decision, no objections are maintained against the other addressees of the Statement of Objections.
26 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 allegedly coordinated their behaviour as regards the pricing of freight services worldwide through the FSC, the SSC and the payment of commission on surcharges.
27 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 charges for 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’).
28 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 imposed a flat-rate surcharge per kilo for all relevant shipments. A complex network of mainly bilateral contacts among carriers was established in order to coordinate and monitor the application of the FSC, the precise date of application often being decided, according to the Commission, at local level, with the principal local provider of freight services generally taking the lead and the 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 the surcharges.
29 According to recital 110 of the contested decision, senior management in the head offices of a number of airlines were either directly involved in competitor contacts or regularly informed about them. In the case of the surcharges, the responsible head-office employees were in contact with each other when a change to the surcharge level was imminent. The refusal to pay a commission on surcharges was also confirmed on a number of occasions during contacts at head-office level. There were frequent contacts also in a number of local markets, 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.
30 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.
31 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’).
32 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.’
33 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 others issues, their plans whether or not to introduce a 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.’
34 Third, in recital 676 of the contested decision, the Commission stated that the incriminated carriers had ‘continued to refuse commission on the surcharges and [had] confirmed their relevant intentions to each other in the framework of numerous contacts’.
35 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 the contacts relied on against the applicant is set out in recitals 755 to 759 of that decision.
36 In the fourth place, in Section 5 of the contested decision, the Commission applied Article 101 TFEU to the facts of the present case, while stating, in footnote 1289 of that decision, that the considerations adopted applied also 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 [had] knowingly substituted practical cooperation between them for the risks of competition’.
37 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), had 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).
38 In recital 881 of the contested decision, the Commission added that ‘the majority of the parties’, including the applicant, were involved in all three elements of the single infringement.
39 Third, in recital 884 of the contested decision, the Commission concluded that the infringement at issue was continuous.
40 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.
41 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.
42 Sixth, 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 Seventh, 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 Eighth, 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 [the Swiss Confederation] 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 would exceed 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 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 non-payment of 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 and corrigendum OJ 2009 C 43, p. 10)] 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 air 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 the 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 applicant is concerned, the Commission found that the duration of the infringement was from 4 January 2000 to 14 February 2006.
49 In the sixth place, in Section 8 of the contested decision, the Commission examined the remedies to be taken and the fines to be imposed.
50 As regards, in particular, its determination of the amount of the fines, the Commission stated that it took into account the gravity and duration of the single and continuous infringement as well as possible aggravating and mitigating circumstances. To that end, it applied 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; ‘the 2006 Guidelines’).
51 In recitals 1184 and 1185 of the contested decision, the Commission stated that the basic amount of the fine consisted of a proportion of up to 30% of the value of the undertaking’s sales, depending on the gravity of the infringement, multiplied by the number of years of the undertaking’s participation in the infringement, plus an additional amount of between 15 and 25% of the value of sales (‘the additional amount’).
52 In recital 1197 of the contested decision, the Commission determined the value of sales by adding together, for 2005 – that being the last full year of the single and continuous infringement – turnover from flights in both directions on intra-EEA routes, on EU‑third country routes, on EU‑Switzerland routes, and on non-EU EEA‑third country routes. It also took into account the accession of new Member States to the EU in 2004.
53 In recitals 1198 to 1212 of the contested decision, taking into account the nature of the infringement (horizontal price-fixing agreements), the combined market share of the incriminated carriers (34% worldwide and at least as much on intra-EEA and EEA‑third country routes), the geographic scope of the cartel at issue (worldwide) and the fact that the cartel had actually been implemented, the Commission set the gravity factor at 16%.
54 In recitals 1214 to 1217 of the contested decision, the Commission determined the duration of the applicant’s participation in the single and continuous infringement as follows, according to the routes concerned:
– in so far as it concerned intra-EEA routes, from 4 January 2000 to 14 February 2006, equating to six years and one month and giving rise to a multiplier of 6 1⁄12;
– in so far as it concerned EU-third country routes, from 1 May 2004 to 14 February 2006, equating to one year and nine months and giving rise to a multiplier of 1 9/12;
– in so far as it concerned EU‑Switzerland routes, from 1 June 2002 to 14 February 2006, equating to three years and eight months and giving rise to a multiplier of 3 8/12;
– in so far as it concerned non-EU EEA‑third country routes, from 19 May 2005 to 14 February 2006, equating to eight months and giving rise to a multiplier of 8/12.
55 In recital 1219 of the contested decision, the Commission found that, given the specific circumstances of the case and taking into account the criteria mentioned in paragraph 53 above, the additional amount should be set at 16% of the value of sales.
56 Consequently, in recitals 1240 to 1242 of the contested decision, the basic amount to be imposed on the applicant was assessed at EUR 169 000 000 and, after a reduction of 50% on the basis of point 37 of the 2006 Guidelines (‘the general 50% reduction’) to reflect the fact that part of the services relating to inbound routes and routes departing from the EEA to third countries (‘outbound routes’) was performed outside the territory covered by the EEA Agreement and that part of the harm was therefore likely to occur outside that territory, the basic amount of the applicant’s fine was fixed at EUR 84 000 000.
57 In recitals 1264 and 1265 of the contested decision, in accordance with point 29 of the 2006 Guidelines, the Commission granted the incriminated carriers an additional reduction of 15% in the basic amount of the fine (‘the general 15% reduction’) on the ground that certain regulatory regimes had encouraged the cartel at issue.
58 Consequently, in recital 1293 of the contested decision, the Commission set the basic amount of the applicant’s fine, after adjustment, at EUR 71 400 000.
59 In recitals 1331 to 1338 of the contested decision, the Commission took into account the applicant’s contribution in the context of its leniency application and applied a reduction of 20% to the amount of the fine, with the result that, as stated in recital 1404 of the contested decision, the amount of the fine imposed on the applicant was set at EUR 57 120 000.
60 The operative part of the contested decision, in so far as it relates to this 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:
…
(g) [the applicant] from 4 January 2000 until 14 February 2006;
…
(2) The following undertakings infringed Article 101 of the TFEU as regards [EU-third country routes], for the following periods:
…
(g) [the applicant] from 1 May 2004 until 14 February 2006;
…
(3) The following undertakings infringed Article 53 of the EEA Agreement as regards [non-EU EEA‑third country routes], for the following periods:
…
(g) [the applicant] from 19 May 2005 until 14 February 2006;
…
(4) The following undertakings infringed Article 8 of the [EC‑Switzerland Air Transport Agreement] as regards [EU‑Switzerland routes], for the following periods:
…
(g) [the applicant] from 1 June 2002 until 14 February 2006;
…
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:
…
(g) [the applicant]: EUR 57 120 000;
…’
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:
…
[the applicant]
…’
II. Procedure and forms of order sought
61 By application lodged at the Court Registry on 31 May 2017, the applicant brought the present action.
62 The Commission lodged its defence at the Court Registry on 29 September 2017.
63 The applicant lodged its reply at the Court Registry on 22 December 2017.
64 The Commission lodged its rejoinder at the Court Registry on 1 March 2018.
65 On 24 April 2019, on a proposal from the Fourth Chamber, the Court decided, pursuant to Article 28 of its Rules of Procedure, to refer the present case to a chamber sitting in extended composition.
66 On 19 June 2019, in the context of the measures of organisation of procedure laid down in Article 89 of the Rules of Procedure, the Court put written questions to the parties. The parties replied within the prescribed period.
67 At the hearing on 5 July 2019, the parties presented oral argument and answered the questions put by the Court.
68 By order of 31 July 2020, the Court (Fourth Chamber, Extended Composition), considering that it lacked sufficient information and that it was necessary to invite the parties to submit their observations concerning 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.
69 The parties replied within the prescribed period to a series of questions put by the Court on 4 August 2020, and then submitted observations on their respective replies.
70 By decision of 6 October 2020, the Court again closed the oral part of the procedure.
71 The applicant claims that the Court should:
– annul Article 1(1) to (4) of the contested decision, in so far as it concerns the applicant;
– annul Article 3 of the contested decision in so far as it imposes a fine of EUR 57 120 000 on the applicant or, in the alternative, reduce the amount of that fine;
– order the Commission to pay the costs.
72 The Commission contends, in essence, that the Court should:
– dismiss the action;
– alter the amount of the fine imposed on the applicant by withdrawing the benefit of the general 50% reduction and the general 15% reduction, should the Court find that the turnover from the sale of inbound freight services could not be included in the value of sales;
– order the applicant to pay the costs.
III. Law
73 In its action, the applicant puts forward both a claim for annulment of the contested decision and a claim for a reduction in the amount of the fine imposed on it. The Commission, for its part, made an application seeking, in essence, an alteration of the amount of the fine imposed on the applicant, should the Court find that the turnover from the sale of inbound freight services could not be included in the value of sales.
A. The claims for annulment
74 The applicant puts forward seven pleas in law in support of its claim for annulment. Those pleas allege:
– first, in essence, an error of law, an error of fact, an error of assessment and breach of the applicant’s rights of defence in that the applicant was held liable for the single and continuous infringement in relation to intra-EEA routes and EU‑Switzerland routes;
– second, infringement of Article 25 of Regulation No 1/2003 and breach of the principles of legal certainty, ‘justice’ and the sound administration of justice;
– third, errors in the imputation of that infringement to the applicant;
– fourth, an inadequate statement of reasons to support the finding that the applicant had participated in that infringement in respect of intra-EEA routes and EU‑Switzerland routes;
– fifth, numerous errors, breach of the principle of equal treatment and a failure to state reasons concerning the applicant’s activities in third countries in the light of specific regulatory regimes applicable in those countries;
– sixth, a 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; and
– seventh, errors in the calculation of the fine.
75 The Court considers it appropriate to examine, in the first place, the sixth plea, in the second place, of the Court’s own motion, the plea alleging that the Commission lacked jurisdiction, in the light of Article 11 of the EC‑Switzerland Air Transport Agreement, to find and penalise an infringement of Article 53 of the EEA Agreement on routes between airports located in countries which are contracting parties to the EEA Agreement and which are not members of the EU and airports located in Switzerland (‘non-EU EEA‑Switzerland routes’), in the third place, the second plea, in the fourth place, the first plea, in the fifth place, the fourth plea and, in the sixth place, the third, fifth and seventh pleas in law in turn.
1. The sixth plea in law, alleging lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services
76 The present plea, by which the applicant claims that the Commission did not have jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services, consists, in essence, of three parts, the first of which alleges incorrect interpretation of Council Regulation (EC) No 411/2004 of 26 February 2004 repealing Regulation (EEC) No 3975/87 and amending Regulation (EEC) No 3976/87 and Regulation No 1/2003 as regards air transport between the Community and third countries (OJ 2004 L 68, p. 1), the second alleges misapplication of the implementation test, and the third alleges misapplication of the qualified effects test.
(a) The first part of the plea, alleging incorrect interpretation of Regulation No 411/2004
77 The applicant submits that the Commission was wrong to find, in recital 1041 of the contested decision, that Article 101 TFEU was applicable to anticompetitive practices on EU-third country routes ‘in both directions’.
78 The Commission disputes the applicant’s line of argument.
79 As a preliminary point, it should be recalled that 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.
80 In the absence of such legislation, Articles 104 and 105 TFEU [continue to] apply and impose, in essence, the obligation to apply Articles 101 and 102 TFEU to 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).
81 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).
82 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).
83 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 80 above.
84 It was only in 1987 that the Council adopted a regulation on air transport pursuant to Article 103(1) TFEU. This was 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), which conferred on the Commission the power to apply Articles 101 and 102 TFEU to international air transport between airports within the EU, 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).
85 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.
86 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 (on cooperation between 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 that regulation provided that the latter ‘[did not] apply to air transport between [European Union] airports and third countries’.
87 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, conferred on the Commission the power to apply Articles 101 and 102 TFEU to EU‑third country routes as from 1 May 2004.
88 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, conferring on 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.
89 In the present case, the parties disagree, in essence, on whether the scope of Regulation No 411/2004 and Decision of the EEA Joint Committee No 40/2005 extends to inbound freight services.
90 In that connection, first of all, it should be noted that, since Regulation No 411/2004 repealed Regulation No 3975/87 and removed Article 32(c) of Regulation No 1/2003, there is no longer an express legal basis that would be such as to justify that inbound freight services remain excluded from the regime created by Regulation No 1/2003 and therefore remain subject to the rules laid down in Articles 104 and 105 TFEU.
91 Next, there is nothing in the wording or general scheme of Regulation No 411/2004 to suggest that the legislature intended to maintain the exclusion of inbound freight services from the scope of Regulation No 1/2003. On the contrary, both the title and recitals 1 to 3, 6 and 7 of Regulation No 411/2004 expressly refer to ‘air transport between the [European Union] and third countries’, without any distinction according to whether (i) it is from or to the European Union or (ii) it concerns freight or the carriage of passengers.
92 The purpose of Regulation No 411/2004 also argues in favour of including inbound freight services within the scope of that regulation. It is clear from recital 3 of that regulation that the extension of the scope of Regulation No 1/2003 to air transport between the European Union and third countries is based on a twofold finding. First, ‘anti-competitive practices in air transport between the [European Union] and third countries may affect trade between Member States’. Second, ‘mechanisms enshrined in [the latter regulation] are equally appropriate for applying the competition rules to air transport between the [European Union] and third countries’. The applicant has neither demonstrated nor even alleged that incoming freight services are not, by their very nature, capable of affecting trade between Member States or are not appropriate for implementing the mechanisms provided for by that regulation.
93 Lastly, the travaux préparatoires for Regulation No 411/2004 confirm that the EU legislature did not intend to draw a distinction either between inbound and outbound routes or between freight and passenger transport. It is thus clear from point 10 of the explanatory memorandum of the proposal for the Council regulation repealing Regulation No 3975/87 and amending Regulation (EEC) No 3976/87 and Regulation No 1/2003, in connection with air transport between the [European Union] and third countries (COM/2003/0091 final – CNS 2003/0038), that, ‘the extension of the competition enforcement rules to include also international air transport to and from the [European Union] would afford [carriers] the clear benefit of a common EU-wide enforcement system as to the legality of their agreement under the [EU] competition rules’. In the same paragraph, reference is made to the desire to ensure ‘the airline industry’s need for a level playing field for all air transport activities’.
94 It follows that, contrary to the applicant’s claim, inbound freight services fall within the scope of Regulation No 411/2004 and Decision of the EEA Joint Committee No 40/2005. The Commission did not therefore err in finding, in recital 1041 of the contested decision, that Article 101 TFEU was applicable to air transport between the European Union and third countries ‘in both directions’, the same being true for Article 53 of the EEA Agreement as regards non-EU EEA‑third country routes.
95 Accordingly, the first part of the present plea must be rejected.
(b) The second and third parts, alleging, respectively, an error in the application of the implementation test and an error in the application of the qualified effects test
96 It should be observed that, as regards conduct adopted outside the territory of the EEA, the mere existence of directives or regulations referred to in Article 103(1) TFEU is not sufficient to establish the Commission’s jurisdiction under public international law to find and penalise an infringement of Article 101 TFEU or Article 53 of the EEA Agreement.
97 The Commission must also be able to establish that jurisdiction on the basis of the implementation test or 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).
98 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).
99 In recitals 1043 to 1046 of the contested decision, the Commission 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.
100 Since the applicant alleges an error in the application of each of those two tests, the Court considers it appropriate to examine first of all whether the Commission was entitled to rely on the qualified effects test. In accordance with the case-law cited in paragraph 98 above, only if this was not the case will it be necessary to ascertain whether the Commission could rely on the implementation test.
101 The applicant claims that the Commission failed to discharge the burden of proof and erred in its application of the qualified effects test.
102 In the first place, the Commission simply relied on a mere presumption, failing to adduce any evidence in support of its conclusion. It merely made assertions, not carrying out any assessment of the effect of the conduct at issue on the prices of inbound freight services on the (unidentified) markets of the EEA in which the imported goods in question are sold. Moreover, it did not establish that the conduct at issue had the effect of increasing the level of surcharges or produce any economic analysis indicating that the prices of the latter increased as a result of the increase in the prices of inbound freight services. Moreover, the applicant maintains that it provided the Commission with a report showing that the surcharges did not give rise to an overcharge in terms of overall price.
103 In the second place, in the reply, the applicant adds that the increase in the price of the goods transported is not an ‘anti-competitive effect’ that could be felt on the EU market. The only market capable of being affected was the market where the freight service inbound to the EEA originated from. However, in recital 917 of the contested decision, the Commission stated that it was not making any assessment of the anticompetitive effects of the anticompetitive practices at issue.
104 In the third place, the applicant submits that considering that conduct forms part of a single and continuous infringement is irrelevant for the purposes of applying the qualified effects test. According to the applicant, the concept of a single and continuous infringement is merely a procedural rule aimed at alleviating the burden of proof on competition authorities. That concept cannot extend the ambit of the prohibitions under the Treaties.
105 In the fourth place, in the reply, the applicant submits, in essence, that accepting the interpretation advocated by the Commission of the scope of its jurisdiction would lead to an infringement of the principle of international comity and the principle ne bis in idem.
106 The Commission disputes the applicant’s line of argument.
107 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.
108 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 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’.
109 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 Court, the effects of the single and continuous infringement taken as a whole.
110 The Court considers it appropriate to examine both the effects of coordination in relation to inbound freight services taken in isolation and those relating to the single and continuous infringement viewed as a whole, starting with the effects taken in isolation.
(1) The effects of coordination in relation to inbound freight services taken in isolation
111 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.
112 In that regard, 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).
113 In the present case, the applicant disputes both the relevance of the effect at issue (see paragraphs 114 to 132 below), its foreseeability (see paragraphs 134 to 150 below), its substantiality (see paragraphs 151 to 161 below) and its immediacy (see paragraphs 162 to 170 below). The applicant also alleges an infringement of the principles of international comity and ne bis in idem.
(i) The relevance of the effect at issue
114 It is apparent from the case-law that the fact that an undertaking participating in an agreement or 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).
115 The purpose of applying the qualified effects test is precisely to prevent conduct which, while not adopted within 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).
116 That test does not require it to be established that the conduct at issue ‘in fact had any anticompetitive effect’ on the internal market or within the EEA. On the contrary, according to the case-law, it is sufficient to take account of the probable effects of that conduct on competition (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 51).
117 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.
118 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 classification of conduct as a restriction of competition by ‘effect’ within the meaning of those provisions presupposes.
119 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).
120 It is settled case-law that anticompetitive object and anticompetitive effect are not cumulative but alternative conditions for assessing whether conduct falls within the scope of the prohibition 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).
121 It follows 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).
122 In those circumstances, interpreting the qualified effects test as the applicant appears to advocate, as requiring proof of the actual effects of the conduct at issue, if necessary by means of an economic analysis, 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.
123 The applicant cannot therefore validly claim that the Commission erred in finding that the qualified effects test was satisfied, even though it had, in recitals 917, 1190 and 1277 of the contested decision, stated that it is not required to make an assessment of anticompetitive effects of the conduct at issue in the light of the anticompetitive object of that conduct. Nor can the applicant 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.
124 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.
125 None of the applicant’s arguments permits the inference that the effect at issue was not among the effects produced by the conduct at issue which the Commission is entitled to take into account for the purposes of applying the qualified effects test.
126 In the first place, contrary to what the applicant appears to claim, there is nothing in the wording, scheme or purpose of Article 101 TFEU to suggest that the effects taken into account for the purposes of applying the qualified effects test must occur on the same market as that concerned by the infringement at issue rather than on a downstream market, as in the present case (see, to that effect, judgment of 9 September 2015, Toshiba v Commission, T‑104/13, EU:T:2015:610, paragraphs 159 and 161).
127 In the second place, the applicant is incorrect in claiming that the conduct at issue, in so far as it concerned inbound routes, was not capable of restricting competition in the EEA, on the ground that that conduct took place only in third countries where the freight forwarders who sourced inbound freight services from the incriminated carriers are established.
128 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).
129 In the present case, it is apparent from recitals 14, 17 and 70 of the contested decision and from the parties’ answers to the measures of organisation of procedure of the Court that the carriers sell their freight services exclusively or almost exclusively to freight forwarders. As regards inbound freight services, almost all those sales take place at the origin of the routes in question, outside the EEA, where those freight forwarders are established. It is apparent from the application that, between 1 May 2004 and 14 February 2006, the applicant achieved only a negligible proportion of its sales of inbound freight services to customers based in the EEA.
130 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, by definition, is 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.
131 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, it is on the internal market or within the EEA that they are liable to materialise.
132 Consequently, the additional cost which shippers might have had to pay and the higher prices of 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.
133 In accordance with the case-law cited in paragraph 112 above, the question is therefore whether that effect has the required foreseeability, substantiality and immediacy.
(ii) The foreseeability of the effect at issue
134 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).
135 Effects the occurrence of 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).
136 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 price-fixing 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).
137 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.
138 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 rebates 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).
139 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 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 applicant has failed to show that a ‘waterbed effect’ was so probable as to render the effect at issue unforeseeable.
140 It is true that the applicant relies on an economic analysis annexed to the application, from which it is apparent that ‘the surcharges did not give rise to an overcharge in terms of overall price’. It should be noted, however, that the applicant does not identify the passages in that 48-page report on which it intends to rely. Moreover, it fails to maintain that the report is capable of demonstrating that the relevant economic and legal context was such as to render the increase in the level of the surcharges unforeseeable as a result of the conduct at issue.
141 In those circumstances, the members of the cartel at issue could reasonably have foreseen that the single and continuous infringement would have the effect, in so far as it concerned inbound freight services, of increasing the price of freight services on inbound routes.
142 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.
143 In that regard, it is apparent from recitals 14 and 70 of the contested decision that the price of freight services is 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.
144 The applicant does 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.
145 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.
146 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.
147 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.
148 In view of the grounds set out in paragraph 130 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.
149 Since the effect at issue was part of the normal course of events and was economically rational, it was not, moreover, necessary for the applicant to operate on the market for importing goods or the downstream resale market for those goods in order to be able to foresee it.
150 It must therefore be concluded that the Commission has established to the requisite standard that the effect at issue was foreseeable.
(iii) The substantiality of the effect at issue
151 The assessment of whether the 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).
152 Where the effect examined 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.
153 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.
154 In the first place, it is apparent from recital 1146 of the contested decision that the single and continuous infringement lasted 21 months in so far as it concerned EU-third country routes and 8 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 Lufthansa Cargo and Swiss.
155 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’.
156 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 2006 Guidelines.
157 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 applicant submits, during the infringement period the surcharges represented a significant proportion of the total price of freight services.
158 Thus, it is 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 (‘CSC’) of the Hong Kong Board of Airline Representatives (‘BAR’), that the surcharges represent a ‘very significant part’ of the total price of the air waybills which freight forwarders were required to pay.
159 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’.
160 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 outbound and inbound routes. Moreover, during the infringement period, the applicant itself achieved a significant turnover on the inbound routes, in excess of EUR 270 000 000 in 2005.
161 It must therefore be concluded that the Commission has established to the requisite standard that the effect at issue was substantial.
(iv) The immediacy of the effect at issue
162 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 examined. 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 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).
163 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).
164 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 at the shipping stage. However, 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.
165 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).
166 In the present case, the applicant does not demonstrate, or even allege, that the foreseeable passing on of the additional cost to shippers located in the EEA is wrongful or extraneous to the normal functioning of the market.
167 It follows that the effect at issue has the required immediacy.
168 None of the applicant’s arguments is capable of calling that conclusion into question.
169 It must thus be held that the applicant is not entitled to rely on paragraph 87 of the judgment of 27 February 2014, InnoLux v Commission (T‑91/11, EU:T:2014:92). It must be pointed out that the facts in the case which gave rise to that judgment differ fundamentally from those of the present case. That judgment concerned the distinction between the turnover (i) from the internal sale of cartelised components which were found in finished products sold in the EEA and (ii) from the sale to third parties outside the EEA of cartelised components which were also incorporated in finished products sold in the EEA. The Court held that the turnover from (i) could be included in the value of sales. By contrast, the Court considered, as regards the turnover from (ii), that the link between the internal market and the infringement would have been too weak. There was no evidence, however, that the finished products incorporating the cartelised components sold to third parties outside the EEA were a priori intended to be sold within the EEA. Conversely, as stated in paragraph 130 above, if the freight forwarders purchase inbound freight services, it is in order to consolidate them into a package of services, the purpose of which is precisely to organise the integrated transport of goods to the territory of the EEA on behalf of shippers.
170 It follows from the foregoing that the effect at issue is sufficiently 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.
(v) The alleged breach of the principles of international comity and ne bis in idem
171 Contrary to what the applicant claims, the conclusion that the qualified effects test was satisfied does not infringe either the principle of international comity or the principle ne bis in idem.
172 As regards the principle ne bis in idem, it should be borne in mind that, when the Commission imposes sanctions under EU competition law on the unlawful conduct of an undertaking, even conduct originating in an international cartel, it seeks to safeguard the free competition within the internal market which, pursuant to Article 3 TEU read in conjunction with Protocol No 27 on the internal market and competition, annexed to the EU Treaty and the FEU Treaty as a component of the internal market, constitutes a fundamental objective of the European Union. On account of the specific nature of the legal interests protected at EU level, the Commission’s assessments pursuant to its relevant powers may diverge considerably from those by authorities of non-member States. It follows that, as was found in recital 1196 of the contested decision, the principle ne bis in idem does not apply to situations in which the legal systems and competition authorities of non-member States intervene within their own jurisdiction (judgments of 29 June 2006, Showa Denko v Commission, C‑289/04 P, EU:C:2006:431, paragraphs 55 and 56, and of 10 May 2007, SGL Carbon v Commission, C‑328/05 P, EU:C:2007:277, paragraphs 27 and 28).
173 In the present case, the applicant relies specifically on the possibility that the competition authorities of third countries might assert jurisdiction over inbound freight services. For example, it cites a decision of the South Korean competition authority on routes from South Korea to the EEA.
174 It follows that the applicant is not justified in claiming that the Commission breached the principle ne bis in idem by penalising it for conduct outside the EEA.
175 In addition, it must be held that, contrary to what the applicant claims, the complaint alleging breach of the principle ne bis in idem is purely speculative. In that regard, it must be borne in mind that it is for the applicant to discharge the burden of proving the breach of the principle ne bis in idem which it alleges. In accordance with settled case-law, it is normally for the person alleging facts in support of a claim to adduce proof of such facts (order of 25 January 2008, Provincia di Ascoli Piceno and Comune di Monte Urano v Apache Footwear and Others, C‑464/07 P(I), not published, EU:C:2008:49, paragraph 9).
176 In the present case, the applicant has not proved that a competition authority of a third country had penalised it for conduct relating to inbound freight services in respect of which the Commission penalised it.
177 It follows that the applicant has failed to establish a breach of the principle ne bis in idem.
178 As to the argument based on failure to comply with the principle of international comity, it is sufficient to point out that that principle is not capable of obliging the Commission to take account of proceedings and penalties relating to competition law to which the applicant may be subject in non-member States (see, to that effect, judgment of 29 June 2006, Showa Denko v Commission, C‑289/04 P, EU:C:2006:431, paragraphs 57 and 58).
179 It follows that the applicant has failed to establish a breach of the principle of international comity.
180 It must therefore be held that the Commission was entitled to find, without committing any error, that that the qualified effects test was satisfied as regards 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
181 It should be noted at the outset that, contrary to what the applicant claims, 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).
182 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).
183 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).
184 Those considerations apply, mutatis mutandis, to Article 53 of the EEA Agreement.
185 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. In so far as the applicant contests that characterisation in general and the finding of the existence of a single anticompetitive aim seeking to restrict competition within the EEA on which the Commission relies; the applicant’s arguments will be examined in the context of the third plea in law, which relates to that issue.
186 In recital 1046 of the contested decision, the Commission, as is apparent from its replies to the written and oral questions put by the 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 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 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, as a result, indirect routes are substitutable for direct routes.
187 In those circumstances, the Commission was right to claim that to prohibit it from applying the qualified effects test to the conduct at issue as a whole would risk leading 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 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).
188 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.
189 As regards the agreements and practices, first, which had the object of restricting competition at least in the European Union, the EEA and Switzerland (recital 903 of that decision), second, which 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.
190 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.
191 Since the Commission has thus established to the requisite 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 and, consequently, the present plea must be rejected in its entirety, without it being necessary to examine the complaint alleging errors in the application of the implementation test.
2. The plea, raised of the Court’s own motion, alleging a 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
192 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).
193 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).
194 In the present case, the Court takes the view that it has a duty to examine of its own motion whether the Commission exceeded its own jurisdiction, under 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 the measures of organisation of procedure.
195 The applicant claims that the reference to ‘third countries’ in Article 1(3) of the contested decision included the Swiss Confederation and that it could not therefore make a definitive statement on the question whether the Commission had found an infringement of Article 53 of the EEA Agreement on non-EU EEA‑third country routes. However, it stated that, in view of the Commission’s expansionist view of its own jurisdiction in the contested decision, it was possible that the answer to this question was in the affirmative. In any event, it stated that the operative part of that decision did not enable it to understand the extent of its liability and that it might therefore be appropriate to annul it or to reduce the amount of the fine because of the difficulties it had experienced in exercising its rights of defence as a result.
196 The applicant added that, if the Commission had held it liable for an infringement of Article 53 of the EEA Agreement on non-EU EEA‑Switzerland routes, it would have to be held that it has infringed Article 11(2) of the EC‑Switzerland Air Transport Agreement.
197 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.
198 The Commission adds that, if it were to be held that it found the applicant 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.
199 It is necessary to determine whether 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, where appropriate, thus exceeded the limits of its jurisdiction under the EC‑Switzerland Air Transport Agreement.
200 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 (‘the Charter’). 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 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).
201 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).
202 In Article 1(3) of the contested decision, the Commission found that the applicant 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 14 February 2006. It neither expressly included non-EU EEA‑Switzerland routes among those routes nor expressly excluded them.
203 It is therefore necessary to ascertain whether the Swiss Confederation falls within the ‘third countries’ referred to in Article 1(3) of the contested decision.
204 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 applicant observes, the Swiss Confederation is not party to the EEA Agreement and therefore numbers amongst the third countries to that agreement.
205 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.
206 In Article 1(2) of the contested decision, the Commission found an infringement of Article 101 TFEU on ‘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 a 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 form the subject of Article 1(4) of the contested decision, which finds an infringement of Article 8 of the EC‑Switzerland Air Transport Agreement on ‘routes between airports within the European Union and airports in Switzerland’.
207 In accordance with the principle recalled in paragraph 205 above, it must therefore be presumed that the terms ‘airports in third countries’ used in Article 1(3) of the contested decision have the same meaning as the terms ‘airports outside the EEA’ used in Article 1(2) thereof and, consequently, exclude airports in Switzerland.
208 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 concluded that the concept of ‘third countries’ in Article 1(3) thereof excludes the Swiss Confederation.
209 It cannot therefore be considered that the Commission found the applicant 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.
210 Since the operative part of the contested decision does not give rise to any doubts, it is thus solely for the sake of completeness that the Court adds that the grounds of that decision do not contradict that conclusion.
211 In recital 1146 of the contested decision, the Commission stated that the ‘anti-competitive arrangements’ described by it 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 footnote relating thereto (No 1514), the Commission specified the following: ‘For the purpose of this Decision, “airports outside the EEA” include airports in countries other than in [the Swiss Confederation] and in Contracting Parties to the EEA Agreement’.
212 Admittedly, when it describes the scope of the infringement of Article 53 of the EEA Agreement in recital 1146 of the contested decision, the Commission does not refer to the concept of ‘airports outside the EEA’, but to that of ‘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 expressions 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 and routes between Iceland, Norway and Liechtenstein and countries outside the EEA’.
213 The grounds of the contested decision thus confirm that the concepts of ‘airports in third countries’ and ‘airports outside the EEA’ have the same meaning. In accordance with the definition clause in footnote 1514, it must therefore be considered that both exclude airports in Switzerland.
214 Contrary to what the applicant claims, recitals 1194 and 1241 of the contested decision do not militate in favour of another solution. Admittedly, the Commission referred, in recital 1194 of that decision, to ‘routes between the EEA and third countries, 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 the Commission is acting under the [EC‑Switzerland Air Transport Agreement]’. It could be considered that, as the applicant in essence submits, if the Commission took care to insert in those recitals the words ‘except routes between the [European Union] and Switzerland’, it is because it considered the Swiss Confederation to be covered by the concept of ‘third country’ in so far as EEA‑third country routes were concerned.
215 The Commission also acknowledged that it was possible that it had ‘inadvertently’ included in the value of sales the turnover which some of the incriminated carriers had 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, 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.
216 It must nevertheless be held, as the Commission stated, that those aspects concerned only the revenues to be taken into account for the purposes of calculating the basic amount of the fine, not the definition of the geographic scope of the single and continuous infringement which it as issue here.
217 The present plea must therefore be rejected.
3. The second plea in law, alleging an infringement of Article 25 of Regulation No 1/2003 and the principles of legal certainty, ‘justice’ and the sound administration of justice
218 The applicant submits that, since the ‘action’ which the Commission took against it with a view to adopting the Decision of 9 November 2010 did not at any time relate to unlawful conduct concerning intra-EEA and EU‑Switzerland routes, the limitation period applicable to that conduct expired in February 2011, five years after the cessation of the single and continuous infringement. In the alternative, it maintains that, even if the initiation of proceedings in February 2006 were to be regarded as interrupting the limitation period, the fact remains that the limitation period expired five years after the adoption of that decision not imputing to the applicant the unlawful conduct concerning intra-EEA and EU‑Switzerland routes. As regards its action against that decision, the applicant states that it can have suspensive effect on the limitation period only in respect of those aspects of the decision which it contested and that it was unable to contest the findings of infringement relating to intra-EEA and EU‑Switzerland routes for which the Commission did not hold it liable in the decision in question.
219 The applicant further claims that any other interpretation of the wording cannot prevail, in view of the legitimate expectation created by the Decision of 9 November 2010 that it would not be penalised with regard to intra-EEA and EU‑Switzerland routes, because to do so would breach the principles of natural justice and procedural fairness.
220 Lastly, the applicant adds that, in the contested decision, the Commission failed to consider whether it had a legitimate interest, in accordance with the case-law, in finding the applicant liable with regard to the single and continuous infringement concerning intra-EEA and EU‑Switzerland routes, in so far as its power to impose fines in that regard had been affected by the limitation period.
221 The Commission replies that, even on the assumption that the Statement of Objections was the last act to interrupt the limitation period, the limitation period had not expired by the time the contested decision was adopted, given the suspension of the limitation period while the applicant’s action against the Decision of 9 November 2010 was pending. The Commission adds that the fact, apparently alleged by the applicant, that the investigation which led to the Decision of 9 November 2010 related to only part of the single and continuous infringement is irrelevant, given that the Statement of Objections plainly related to the whole of that infringement, as the applicant clearly understood.
222 The Commission also contests the argument which the applicant makes in the alternative, in that the grounds of the Decision of 9 November 2010 described a worldwide cartel constituting a single and continuous infringement and were understood in that way by the applicant, as is evidenced by the content of the action which it brought against the Decision of 9 November 2010, which seeks to overturn that finding.
223 It follows, according to the Commission, that there is nothing unfair in the normal application of the limitation rules under Article 25 of Regulation No 1/2003.
224 It should be recalled that, pursuant to Article 25(1)(b), (2), (3) and (5) of Regulation No 1/2003, the limitation period for the power to impose a fine is to expire where:
– the Commission did not impose a fine within five years from the day on which the infringement ceased (paragraph 1(b)) without any action interrupting the limitation period having been taken in the meantime (paragraph 3);
– or at the latest within 10 years from the day on which the infringement ceased if interruptive actions have been taken (paragraph 5).
225 In addition, Article 25(6) of Regulation No 1/2003 provides that the limitation period in proceedings is to be suspended for as long as the decision of the Commission is the subject of proceedings pending before the Court of Justice. Under paragraph 5 of that article, the limitation period of 10 years is to be extended by the time during which limitation is suspended pursuant to paragraph 6 thereof.
226 In accordance with Article 25(3) of Regulation No 1/2003, the limitation period is to be interrupted by any action taken by the Commission for the purpose of the investigation or proceedings in respect of an infringement notified to at least one undertaking which has participated in the infringement. In accordance with Article 25(4) of that regulation, the interruption of the limitation period is to apply for all the undertakings which have participated in the infringement in question.
227 It follows that the fact that an undertaking was not identified as having participated in the infringement in one or more actions taken for the purpose of the investigation or proceedings in respect of the infringement during the administrative procedure does not preclude the interruption of the limitation period from also applying to it, provided that the undertaking concerned is subsequently identified as having participated in the infringement (judgment of 31 March 2009, ArcelorMittal Luxembourg and Others v Commission, T‑405/06, EU:T:2009:90, paragraphs 143 and 144).
228 On the other hand, the Court of Justice has held that, unlike the erga omnes effect of the actions which interrupt the limitation period referred to in Article 25(3) and (4) of Regulation No 1/2003, the suspension of the limitation period which Article 25(6) of that regulation attaches to judicial proceedings takes effect only inter partes (judgment of 29 March 2011, ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, C‑201/09 P and C‑216/09 P, EU:C:2011:190, paragraph 148).
229 Thus, with respect to undertakings which have not brought actions against a final decision of the Commission, an action brought by another undertaking against the same final decision cannot have any suspensive effect (judgment of 29 March 2011, ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, C‑201/09 P and C‑216/09 P, EU:C:2011:190, paragraph 145).
230 Lastly, the fact that the Commission no longer has the power to impose fines on persons committing an infringement on account of the expiry of the limitation period does not in itself preclude the adoption of a decision finding that that infringement was committed, provided that the Commission demonstrates, in such a case, a legitimate interest in taking a decision finding such an infringement (see, by analogy, judgment of 6 October 2005, Sumitomo Chemical and Sumika Fine Chemicals v Commission, T‑22/02 and T‑23/02, EU:T:2005:349, paragraphs 131 and 132).
231 In the present case, it is not disputed that the starting point of the limitation period is the date on which the single and continuous infringement ceased, namely 14 February 2006, in accordance with Article 25(2) of Regulation No 1/2003.
232 Furthermore, the applicant submits, principally, that no action interrupting the limitation period was taken by the Commission and, in the alternative, that the last action interrupting the limitation period, within the meaning of Article 25(3) of Regulation No 1/2003, was the Decision of 9 November 2010. The Commission does not dispute that that decision can constitute the last action interrupting the limitation period, in view of which the parties agree that the limitation period expired, at the latest, on 9 November 2015.
233 The Commission nevertheless submits, unlike the applicant, that the limitation period was suspended, in accordance with Article 25(6) of that regulation, while the proceedings which gave rise to the judgment of 16 December 2015, Cathay Pacific Airways v Commission (T‑38/11, not published, EU:T:2015:985) were pending, with the result that the limitation period had not expired on the date of adoption of the contested decision.
234 It is therefore necessary to determine whether the action brought by the applicant against the Decision of 9 November 2010 had the effect of suspending the limitation period in respect of the applicant’s unlawful conduct found in Article 1(1) and (4) of the contested decision, with regard to intra-EEA routes and EU‑Switzerland routes respectively.
235 In that regard, it should be noted that, in order to conclude that the suspensive effect of the limitation period of an action against a Commission decision imposing a penalty is inter partes (paragraph 228 above), the Court of Justice has relied in particular on the extent of the matter to be tried by the Court of the European Union before which the action for annulment is brought, recalling that the matter to be tried by the Courts of the European Union relates only to those aspects of the decision which concern the applicant for annulment (see, to that effect, judgment of 29 March 2011, ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, C‑201/09 P and C‑216/09 P, EU:C:2011:190, paragraph 142). It follows that the scope of the action for annulment must be consistent with the scope of the effect on limitation attaching thereto under Article 25(6) of Regulation No 1/2003.
236 It is therefore necessary to determine the scope of the applicant’s action against the Decision of 9 November 2010 and, in particular, whether, in the context of the dispute brought before it by the applicant, the matter to be tried by the Court concerned conduct relating to intra-EEA routes and EU‑Switzerland routes.
237 In that regard, it is settled case-law that the assessments made in the grounds for a decision are not in themselves capable of forming the subject of an action for annulment and can be subject to review by the Courts of the European Union only to the extent that, as grounds for an act adversely affecting a person’s interests, they constitute the necessary basis for the operative part of that act (see judgment of 11 June 2015, Laboratoires CTRS v Commission, T‑452/14, not published, EU:T:2015:373, paragraph 51 and the case-law cited).
238 Furthermore, the Court of Justice has held that a decision adopted in a competition matter with regard to several undertakings, although drafted and published as a single decision, must be regarded as a group of individual decisions establishing, in relation to each of the undertakings to which it is addressed, the breach or breaches which that undertaking has been found to have committed and, where appropriate, imposing on it a fine (judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 100). The Court of Justice has also held that, if an addressee of a decision decides to bring an action for annulment, the matter to be tried by the Courts of the European Union relates only to those aspects of the decision which concern that addressee, whereas aspects concerning other addressees do not form part of the matter to be tried by the Courts of the European Union, without prejudice to special circumstances (judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 66).
239 Accordingly, the subject matter of the action brought by the applicant against the Decision of 9 November 2010 must be confined to the operative part of that decision, in so far as it concerned the applicant, and to the grounds which constituted the necessary basis for that operative part. That operative part, in so far as it found that the undertakings to which that decision was addressed participated in the unlawful conduct referred to therein, made such a finding in respect of the applicant only with regard to EU‑third country routes (Article 2) and non-EU EEA‑third country routes (Article 3). By contrast, that operative part, in so far as it did not refer to the applicant in Articles 1 and 4 thereof, did not find it liable for the conduct relating to intra-EEA routes and to EU‑Switzerland routes and did not therefore constitute an aspect of the decision that concerned the applicant capable of being challenged before the Court.
240 That finding is not called into question by the fact, put forward by the Commission, that the applicant disputed, in its action against the Decision of 9 November 2010, the existence of a worldwide cartel.
241 First, it cannot be inferred from the fact that the applicant challenged, in the context of that action, the factual finding of the existence of a worldwide cartel that it intended to challenge, at the same time, the finding of its participation in the unlawful conduct relating to the intra-EEA and EU‑Switzerland routes. Moreover, it is apparent from the description of the applicant’s heads of claim in the judgment of 16 December 2015, Cathay Pacific Airways v Commission (T‑38/11, not published, EU:T:2015:985), that it had not sought the annulment of Article 1 and Article 4 of the Decision of 9 November 2010.
242 Second, and in any event, since the Decision of 9 November 2010 must be regarded as a bundle of individual decisions establishing, with regard to each of the carriers it incriminates, the offence(s) for which they are liable, the applicant, by seeking the annulment of that decision, sought annulment of the individual decision addressed to it and which did not impute to it the conduct concerning intra-EEA and EU‑Switzerland routes. That is confirmed by the operative part of the judgment of 16 December 2015, Cathay Pacific Airways v Commission (T‑38/11, not published, EU:T:2015:985), which states that Articles 2, 3 and 5 of the Decision of 9 November 2010 are annulled in so far as they concerned the applicant.
243 In the light of the foregoing, it must be held that the action brought by the applicant against the Decision of 9 November 2010 was not capable of resulting in the suspension of the limitation period provided for in Article 25(6) of Regulation No 1/2003, as regards the unlawful conduct linked to intra-EEA routes and EU‑Switzerland routes.
244 Therefore, in the absence of a suspension of the limitation period, and assuming that there was an interruption in the limitation period, within the meaning of Article 25(3) of Regulation No 1/2003, by the adoption of the decision of 9 November 2010 (see paragraph 232 above), the exercise by the Commission of its power to impose penalties in respect of the conduct at issue was time-barred as of 9 November 2015, or at a date prior to the date of adoption of the contested decision.
245 It follows that, by penalising the applicant in the contested decision for the single and continuous infringement in respect of intra-EEA routes and EU‑Switzerland routes, the Commission infringed the rules on limitation laid down in Article 25 of Regulation No 1/2003.
246 Furthermore, even if, as the Commission appeared to suggest in response to a written question put by the Court in the context of measures of organisation of procedure, the fine imposed on the applicant was not imposed in respect of the unlawful conduct concerning intra-EEA routes and EU‑Switzerland routes, it must be observed that the Commission does not maintain, either in the contested decision or before the Court, that it has a legitimate interest in finding the existence of that unlawful conduct notwithstanding the fact that the power to impose a fine in that respect is time-barred (see, to that effect, judgments of 6 October 2005, Sumitomo Chemical and Sumika Fine Chemicals v Commission, T‑22/02 and T‑23/02, EU:T:2005:349, paragraph 136, and of 16 November 2011, Stempher and Koninklijke Verpakkingsindustrie Stempher v Commission, T‑68/06, not published, EU:T:2011:670, paragraph 44).
247 Consequently, the present plea must be upheld and Article 1(1)(g) and (4)(g) of the contested decision must be annulled, without there being any need to examine the complaints alleging an infringement of the principles of legal certainty, ‘justice’ and the sound administration of justice.
4. The first plea in law, alleging, in essence, an error of law, an error of fact, an error of assessment and breach of the applicant’s rights of defence in that the applicant was held liable for the single and continuous infringement in relation to intra-EEA routes and EU‑Switzerland routes
248 The applicant submits that it should not have been held liable for the single and continuous infringement in so far as it concerned intra-EEA routes and EU‑Switzerland routes, which the Commission disputes.
249 It must be held that the Court has upheld the second plea and, consequently, has already annulled Article 1(1)(g) and (4)(g) of the contested decision, in the context of which the Commission held the applicant liable for the single and continuous infringement in so far as it concerned intra-EEA routes and EU‑Switzerland routes respectively. The examination of the present plea has therefore become devoid of purpose.
5. The fourth plea in law, alleging an inadequate statement of reasons for the applicant’s participation in the single and continuous infringement as regards intra-EEA routes and EU‑Switzerland routes
250 The applicant submits that the Commission failed to make clear whether the applicant was alleged to have participated directly in the unlawful conduct with regard to intra-EEA and EU‑Switzerland routes or to have had knowledge of it, and, if so, whether its alleged knowledge was actual or imputed.
251 In view of the potentially severe consequences of the expansion of the material, geographic and temporal scope of the alleged infringements in order to include intra-EEA and EU‑Switzerland routes, the Commission should also have explained in detail why it made a ‘volte-face’ as regards the characterisation of the single and continuous infringement in relation to the Decision of 9 November 2010. It should therefore have explained why it considered, on the basis of the same evidence, that the main conditions for establishing its liability in respect of intra-EEA and EU‑Switzerland routes had now been satisfied.
252 As for the Commission’s approach of listing without explanation, in recitals 757 to 759 of the contested decision, the ‘contacts’ in which the applicant participated, this constitutes a failure to state reasons.
253 The Commission disputes the applicant’s line of argument.
254 It must be held that the Court has upheld the second plea and, consequently, has already annulled Article 1(1)(g) and (4)(g) of the contested decision, in the context of which the Commission held the applicant liable for the single and continuous infringement in so far as it concerned intra-EEA routes and EU‑Switzerland routes. The examination of the present plea has therefore become devoid of purpose.
6. The third plea in law, alleging errors in the imputation to the applicant of the single and continuous infringement
255 In the context of the present plea, it is necessary to distinguish, among the arguments put forward by the applicant, those directed, first, against the finding of the existence of the single and continuous infringement, second, against the finding of the anticompetitive nature of the contacts in which the applicant participated and, third, against that of the applicant’s participation in the single and continuous infringement in the light (i) of its intentional contribution to the overall plan pursued by that infringement and (ii) of its actual or imputed knowledge of the unlawful conduct of the other participants in which it did not directly participate.
256 It is necessary to examine those arguments in turn, while responding, at the outset, to the applicant’s preliminary complaint that the Commission failed to examine specifically whether each of the conditions laid down by the case-law for the purpose of establishing that an undertaking participated in a single and continuous infringement was satisfied.
(a) The first part, alleging a failure by the Commission to carry out a specific examination in the light of each of the conditions laid down by the case-law for establishing the participation of an undertaking in a single and continuous infringement
257 The applicant claims that the Commission has not fulfilled its obligation to consider the applicant’s specific situation in the light of the evidence comprising the case and to determine which particular pieces of evidence relate specifically to each of the conditions laid down in the case-law for establishing an undertaking’s participation in a single and continuous infringement.
258 The Commission disputes the applicant’s line of argument.
259 In that regard, it should be recalled that, under Article 296 TFEU and Article 41(2)(c) of the Charter, decisions adopted by the Commission must state the reasons on which they are based.
260 The statement of reasons must be appropriate to the measure in question and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to carry out its review (see, to that effect, judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 147).
261 The requirement to state reasons must be assessed by reference to the circumstances of the case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of concern, within the meaning of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU and Article 41(2)(c) of the Charter must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 150, and of 13 December 2016, Printeos and Others v Commission, T‑95/15, EU:T:2016:722, paragraph 45).
262 In the present case, first of all, the Commission found, in recital 755 of the contested decision, that the applicant ‘[had] entered into numerous contacts with competitors aimed at coordinating price in the [freight] sector’, while clarifying the nature and form of those contacts. In recitals 756 and 881 of that decision, it found that the applicant was involved in the three elements of the single and continuous infringement. In recitals 757 to 759 of that decision, it identified the evidence on which those assessments were based and referred, in the footnotes, to the recitals in which their content was set out.
263 Next, in recitals 862 to 868 of the contested decision, the Commission recalled the principles applicable to establishing a single and continuous infringement and the circumstances in which an undertaking could be held liable for its participation in that infringement.
264 Lastly, in recitals 869 to 902 of the contested decision, the Commission examined in an overall manner whether the criteria of the single and continuous infringement were satisfied in the present case and concluded that ‘[all] the anti-competitive activities involving each of the [incriminated carriers]’ fit within an overall aim (recital 899 of the contested decision), thus justifying those activities being regarded as forming part of a single and continuous infringement (recital 901 of the contested decision). In that context, in recitals 885 to 898 of that decision, the Commission also responded to the specific arguments put forward by the incriminated carriers in that regard.
265 It follows from the foregoing that the Commission set out to the requisite legal standard, in the contested decision, the matters of fact and of law which led it to find that the applicant participated in the single and continuous infringement, thus enabling the applicant to understand them and to challenge them and the General Court to review them, as is shown, moreover, by the other complaints which it develops in support of the present plea.
266 It follows that the applicant cannot validly complain that the Commission failed to state sufficient reasons for its decision in that regard. The merits of the assessments in question form the subject matter of the parts of the present plea examined below.
(b) The second part, alleging, in essence, errors in establishing the existence of the single and continuous infringement
267 The applicant submits that the Commission has not demonstrated the existence of an overall plan in pursuit of a common objective, as defined in the contested decision, in that it artificially amalgamates the FSC, the SSC and the refusal to pay commission, which are different in terms of their objectives – which are moreover legitimate – their content and their duration, and do not have the required link of complementarity.
268 Thus, the applicant criticises the Commission for relying, as a common objective, on a simple reference to pricing uncertainty in the airfreight sector. It also submits that the costs that the FSC and the SSC were designed to address were unrelated. As regards the refusal to pay commission, this pursues a legitimate objective of coordinating the legal response of the carriers to the collective position of freight forwarders seeking to establish a right to payment of commission on surcharges, with the aim of reaffirming the need for the interested parties to negotiate, on a bilateral basis, the amount of the freight forwarders’ remuneration, as shown by the evidence in the file. Furthermore, the applicant observes that the period of application of the three elements of the single and continuous infringement is not identical. Lastly, it complains that the Commission failed to examine the separate aspects of that infringement, as regards the various categories of routes concerned, the particular features of certain regulatory regimes and the conduct of the ‘core group’ of the incriminated carriers established in Europe.
269 The Commission disputes the applicant’s line of argument.
270 As a preliminary point, it should be recalled that an infringement of the prohibition of principle laid down in Article 101(1) TFEU can 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. Accordingly, if 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).
271 When assessing whether there has been a single infringement and the existence of 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 (see, to that effect, judgment of 13 September 2013, Total Raffinage Marketing v Commission, T‑566/08, EU:T:2013:423, paragraph 265).
272 It is true that, as the applicant in essence claims, 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).
273 In the present case, the Commission did not confine itself to determining the single anticompetitive objective pursued by the incriminated carriers by a general reference to the distortion of competition in the freight sector or uncertainty in the latter. In recital 872 of the contested decision, the Commission found that that objective ‘was in pursuit of a single anti-competitive aim of distorting competition in the airfreight sector … by coordinating [the] pricing behaviour [of the incriminated carriers] 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 to [freight] forwarders on surcharges’. In recital 874 of that decision, the Commission 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 ‘[that] action was 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 that decision, the Commission 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’.
274 None of the other arguments put forward by the applicant is capable of invalidating the finding that there was a single and continuous infringement.
275 In the first place, contrary to what is claimed by the applicant, the fact that the causes of the costs which led to the establishment of the FSC and the SSC have no connection between them has no bearing on the finding of the existence of a single anticompetitive objective. That fact does not call into question the objective of coordination in relation to those surcharges as set out in paragraph 273 above.
276 In the second place, as regards the alleged legitimate objective pursued by the refusal to pay commission, it should be noted that the applicant’s argument is based on a factually incorrect premiss.
277 Admittedly, it follows from recitals 675 to 702 of the contested decision that the question of the payment of commission was the subject of differing legal interpretations between the carriers and the freight forwarders. However, the incriminated carriers did not limit themselves to defining a common position on this issue in order to defend it in a coordinated manner before the competent courts or to promote it collectively to public authorities and other trade associations. On the contrary, the incriminated carriers colluded by agreeing, at a multilateral level, to refuse to negotiate the payment of commission with freight forwarders and to grant them rebates on surcharges. Thus, in recital 695 of the contested decision, the Commission referred to an internal 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 had] confirmed that [they] will not accept any [FSC/SSC] remuneration’. In recital 696 of that decision, reference is made to an internal email of 14 July 2005 in which the applicant states that several carriers who participated in a meeting held the previous day, ‘reconfirmed [their] firm intention not to accept any negotiation in granting this [payment of commission]’. Also, in recital 700 of that 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’.
278 It is also apparent from the contested decision that several carriers exchanged information, at a bilateral level, in order to assure each other that they would continue to adhere to the refusal to pay commission which they had previously agreed. By way of illustration, recital 688 of that decision describes a telephone conversation dated 9 February 2006 during which Lufthansa asked AF if its position on the subject of the refusal to pay commission remained unchanged.
279 In the third place, the allegedly distinct nature of the conduct of the incriminated carriers for the purposes of their inclusion in the single and continuous infringement, depending on whether they fall within different categories of routes, certain regulatory regimes or the ‘core group’ of incriminated carriers established in Europe, is in no way supported by the applicant or, a fortiori, demonstrated.
280 Moreover, the applicant’s argument relating to the distinct nature of the conduct implemented by a ‘core group’ of carriers which differs from the rest of the incriminated carriers is based on a false premiss. It must be noted that the Commission does not identify such a ‘core group’ in the contested decision and that it was in no way obliged to distinguish between the incriminated carriers on the basis of the degree of their participation in the single and continuous infringement, since that circumstance must be taken into consideration only when the gravity of the infringement is assessed and when it comes to determining the fine (see, to that effect, judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 86). In addition, it is apparent from recitals 878 and 881 of that decision that the Commission found that there was a significant overlap between the undertakings which participated in the various elements of the infringement in question. The scope of that overlap does not coincide with the alleged ‘core group’ identified by the applicant.
281 At most, the Commission, in recital 124 of the contested decision, indicated that Lufthansa ‘[stated] that the core group of contacts that … the pricing manager of [Lufthansa had engaged in], had involved principally bilateral mobile phone calls between him and his counterparts at other carriers’ and that he had ‘had approximately 40 telephone calls with each of [of the airlines] [British Airways], AF, [KLM] and [Cargolux] in the time period between the beginning of 2003 and the end of 2005’. It did not, however, at any moment endorse Lufthansa’s statements as to the existence and scope of such a group, nor did it find that the contacts within the group were different from the other contacts at issue.
282 In the fourth place, the applicant relies, in the context of the present part of the plea, on the differences in the implementation period of the three elements of the single and continuous infringement.
283 In that regard, it should be borne in mind that although the temporal overlap between the conduct at issue may be taken into account in the analysis of the existence of a single and continuous infringement (see, to that effect, judgment of 27 September 2006, Jungbunzlauer v Commission, T‑43/02, EU:T:2006:270, paragraph 312), such a factor cannot be regarded as decisive (see, to that effect, judgment of 13 September 2013, Total Raffinage Marketing v Commission, T‑566/08, EU:T:2013:423, paragraphs 307 and 308).
284 In the present case, it is, admittedly, apparent from recitals 905 to 907 of the contested decision that the coordination relating to the FSC, the SSC and the refusal to pay commission began in December 1999, September 2001 and January 2005 respectively. However, that lack of identity between the starting point of the various elements of the single and continuous infringement cannot, in itself, call into question the finding of the existence of that infringement in the light, first, of the case-law referred to in paragraph 283 above and, second, of the six factors which the Commission set out in recitals 872 to 883 of that decision in order to conclude that the conduct at issue formed part of a single infringement, the merits of those assessments not having been properly challenged by the applicant in the context of the present part of the plea.
285 In the fifth place, as regards the applicant’s assertion that the Commission has not demonstrated the requisite link of complementarity between the various elements of the single and continuous infringement, it should be recalled that, while the existence of such links between the various acts at issue, in that each of them is intended to deal with one or more consequences of the normal pattern of competition and whether, through interaction, they 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 to achieve 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).
286 However, contrary to what the applicant essentially claims, it is not necessary, for the purposes of classifying 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).
287 It follows that, even if it were established, the Commission’s alleged failure to establish a link of complementarity between the agreements and practices at issue is not, on its own, such as to vitiate their classification as a single infringement.
288 In any event, it should be noted that the applicant’s line of argument lacks any basis in fact. As mentioned in paragraph 284 above, in recitals 872 to 883 of the contested decision, the Commission identified six factors in order to conclude that the conduct at issue constituted a single infringement. Those factors include not only the existence of a single anticompetitive objective (recitals 872 to 876) and the fact that the conduct related to the same service (recital 877), but also the single nature of the infringement (recital 879). In its examination of the single nature of the infringement in recital 879 of the contested decision, the Commission found as follows:
‘The contacts concerning the FSC, the SSC and the refusal to pay commission … therefore displayed a link of complementarity, in that each of them was intended to deal with one or more consequences of the normal pattern of competition, and, through that interaction, contribute to the attainment of the single objective desired by those responsible, within the framework of an overall plan.’
289 The applicant has failed to demonstrate that that assessment was vitiated by error in so far as, first, it does not put forward any other specific argument in support of its complaint alleging an incorrect assessment of the existence of links of complementarity and, second, the remainder of its arguments in support of the present part has already been rejected by the Court, as is apparent from paragraphs 270 to 284 above. In that regard, it should be noted that the applicant has not adduced the slightest evidence to call into question the considerations on which the Commission bases its finding of the existence of links of complementarity.
290 In the light of the foregoing, this part of the plea must be rejected.
(c) The third part, alleging, in essence, errors in establishing the anticompetitive nature of the conduct in which the applicant participated
291 The applicant maintains that the evidence used against it in the contested decision does not demonstrate its participation in the single and continuous infringement, in so far as that evidence either concerns conduct in relation to which the Commission had no jurisdiction, or reveals exchanges of information that were already in the public domain, or points to legitimate communications rendered necessary by its work with its joint venture partner, or, lastly, relates to certain legal obligations. In the alternative, it claims that the documents before the Court show, first, that it is not part of the ‘core group’ of carriers which is identified in the contested decision and, second, that its head office did not have any contact with that of the other carriers. In support of its argument, it relies on Annex C.1 to the reply, entitled ‘Notes on Recitals referred to by [the applicant’s] Reply to the Commission’s Defence’.
292 The Commission disputes the applicant’s arguments and contends that Annex C.1 to the reply is inadmissible.
(1) The admissibility of Annex C.1 to the reply
293 The Commission disputes the admissibility of Annex C.1 to the reply, in so far as it contains arguments which do not appear in the body of the reply.
294 The applicant takes issue with the Commission’s argument.
295 In that regard, it should be borne in mind that, whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with Article 76(1)(d) of the Rules of Procedure, must appear in the application (judgment of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 94).
296 Furthermore, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (judgment of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 94).
297 Thus, an annex to an application may be taken into consideration only in so far as it supports or supplements arguments expressly set out by applicant in the body of the application and in so far as it is possible for the Court to determine precisely what are the matters the annex contains that support or supplement those arguments (see, to that effect, judgment of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 99).
298 Those considerations also apply to the reply and to the documents annexed thereto (judgment of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 95).
299 In the present case, it should be noted that Annex C.1 to the reply consists of a 10-page set of arguments in which the applicant challenges the scope given by the Commission to 46 recitals of the contested decision which are referred to in paragraphs 58, 59, 61, 64 and 66 of the defence.
300 In the reply, reference is made to Annex C.1 to the reply several times, as regards this part of the plea. In footnote 22, reference is thus made to the analysis in recitals 424, 409 and 414 of the contested decision, in support of the assertion, made in the reply, that ‘these examples … cannot inculpate [the applicant] in the coordination of pricing on a global basis’. In footnote 23, reference is made to the analysis in recitals 173, 174, 197, 201, 234, 409, 414, 585, 609, 616 and 694 of that decision, in support of the assertion, made in the reply, that ‘ these [contacts] are also disparate and unconnected, and cannot support [the] finding [that the applicant participated throughout the period in the same worldwide cartel]’. In footnote 25, reference is made to the analysis in recitals 171, 232, 244, 257, 295, 466, 586, 588 and 701 of that decision, in support of the assertion, made in the reply, that those contacts which occurred ‘outside the EEA because they all concern routes from particular locations … do not evidence the coordination of surcharges or pricing on a global basis’. In footnote 27, reference is made to the analysis in recitals 139, 158, 196, 197, 201, 257, 273, 322, 409, 414, 463, 499, 501, 502, 535, 563, 572, 616, 618, 686 and 697 of that decision, in support of the assertion, made in the reply, that it is ‘misconceived and inaccurate’ to consider that that information was not in the public domain. Lastly, in footnote 30, reference is made to the analysis in recitals 485 and 611 of the contested decision in support of the assertion, made in the reply, that ‘[those announcements] were sent to employees in [the applicant’s] Frankfurt office in connection with the joint venture between [Lufthansa] and [the applicant] for the operation of freighters between HKG and FRA’.
301 It must be held that, by proceeding in that way, the applicant failed to have regard to the purely evidential and instrumental function of an annex by setting out in that annex the essential part of its arguments by which it seeks to dispute the scope given by the Commission to the contacts at issue. To hold otherwise would amount to authorising a party to confine itself, in the body of its pleadings, to stating that the evidence relied on against it does not prove that it participated in a single and continuous infringement and to developing all the arguments of fact and of law in support of that general assertion in an annex to those pleadings.
302 Furthermore, it must be observed, in particular, that Annex C.1 to the reply is replete with new arguments, relating, inter alia, to the legitimacy of the coordination (recitals 424 and 694 of the contested decision), to the failure to demonstrate actual participation in a meeting of carriers (recitals 409, 414, 173 and 174 of that decision), to the failure to demonstrate the existence of contacts with other carriers (recital 197 of that decision), to the non-reciprocal nature of a contact (recital 201 of that decision) and to the manifestation of a disagreement between carriers which contradicts the argument that there was coordination on pricing (recital 609 of that decision). In addition, the applicant relies on a number of facts for the first time in that annex, in particular in support of its claim that the information exchanged in the context of certain contacts at issue was in the public domain.
303 In the light of the foregoing, it must therefore be held that Annex C.1 to the reply does not merely support or supplement the arguments expressly relied on in the body of the reply, but is in reality the essential part of the applicant’s arguments challenging the scope given by the Commission to the contacts at issue.
304 It follows that, in so far as reference is made to Annex C.1 to the reply in the context of this part of the plea, the Court must not take account of it and must reject it as inadmissible.
(2) The merits of the present part of the plea
305 It is necessary at the outset to reject the applicant’s alternative arguments which, unlike its principal line of argument, do not seek to contest the relevance of the evidence relied on against it, but to dispute, on the basis of that evidence, the inclusion of its conduct in the single and continuous infringement.
306 Thus, first, the applicant’s claim that it did not belong to an alleged ‘core group’ of incriminated carriers, whose participation in the single and continuous infringement had been more extensive, has no bearing on the lawfulness of the finding of its participation in that infringement. As stated in paragraph 280 above, the fact that the degree of the participation in that infringement may have varied between the incriminated carriers must be taken into consideration only when the gravity of the infringement is assessed and if and when it comes to determining the fine (see, in that regard, the examination of the second and third parts of the seventh plea below). In any event, that claim is based on a false premiss, since the Commission did not identify such a ‘core group’ in the contested decision and is in no way required to do so (see paragraphs 280 and 281 above).
307 Second, the applicant’s assertion that its head office did not have any contact with that of the other carriers has no basis in fact.
308 Thus, as regards the SSC, it is apparent from recital 611 of the contested decision that Lufthansa sent out a standard letter in October 2001 justifying the use of that surcharge to the general managers of the cargo divisions of several carriers, including that of the applicant. As for the fact that that dispatch was unsolicited and that the applicant did not reply to it, it is sufficient to note that a passive mode of participation in an infringement is capable of rendering the undertaking liable for taking part in it (see, to that effect, judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraphs 82 and 84, and of 21 January 2016, Eturas and Others, C‑74/14, EU:C:2016:42, paragraphs 46 to 49).
309 Similarly, the applicant does not dispute that the emails described in recitals 446, 450, 482 and 495 of the contested decision, by which Lufthansa communicated its announcements of increases in the FSC to various carriers, formed part of communication between head offices. However, contrary to the applicant’s assertion, those factors cannot be disregarded on the ground that they relate to ‘announcements in the public domain in connection with the … joint venture [between the applicant and Lufthansa]’ (see paragraph 339 below).
310 Lastly, it is apparent from a number of recitals in the contested decision that the applicant’s local staff, encouraged to that effect by its head office, maintained contacts with other carriers or sought to obtain, via its local counterparts, information on the position expressed by that head office. Thus, in recital 687 of that decision, reference is made to a contact that an employee of the applicant had with ‘[the] management [of Lufthansa]’ in January 2006 concerning the refusal to pay commission. Similarly, in recital 232 of that decision, it is stated that an employee of the applicant, after being encouraged by the head office to discuss with the ‘national carrier’ of his area, contacted Qantas in order to ascertain whether ‘[the Qantas head office] had given any indication of any possible action on [the] subject [of the FSC]’. Conversely, it is apparent, for example, from recital 150 of that decision that the applicant’s head office, in the present case in the person of the manager of its cargo division, was contacted by the local representatives of other carriers, who then reported the applicant’s position to their own head office. While it is true that contact is not made directly between the applicant’s head office and that of other carriers, the fact remains that the information exchanged was ultimately exchanged between head offices. Therefore, although indirect, it must be held that those contacts fall within the scope of the organisation at several levels of the cartel at issue described in the contested decision (see paragraphs 325 and 326 below), including in so far as it presupposes the existence of ‘mutual contacts’ between head offices.
311 Since those alternative arguments have been rejected, it is appropriate to examine each of the principal arguments raised by the applicant in support of this part of the plea.
(i) The taking into account of contacts falling outside the Commission’s jurisdiction
312 In the first place, in so far as the applicant complains of the allegedly unlawful use of contacts in connection with inbound freight services on the ground that the Commission lacked jurisdiction with regard to them, it should be recalled that the sixth plea, alleging a 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, has been rejected. The premiss on which the applicant’s argument is based is therefore incorrect.
313 In the second place, in so far as the applicant complains of the allegedly unlawful use of the contacts relating to EU-third country routes before 1 May 2004, it must first of all be noted that the Commission did not, in the operative part of the contested decision, find any infringement of Article 101 TFEU on EU-third country routes before 1 May 2004.
314 The applicant nevertheless submits that the Commission rendered the contested decision unlawful by referring to contacts relating to those routes which took place before that date. In that regard, it cites 41 recitals of that decision which the Commission was not entitled to take into account (recitals 139, 147, 149, 150, 158, 165, 171, 173, 196, 197, 201, 206, 208, 232, 234, 238, 241, 244, 257, 273, 274, 279, 292, 294, 295, 322, 346, 581, 585, 586, 588, 609, 611, 616 to 618, 637, 658, 663, 666 and 701).
315 At the outset, it should be noted that the evidence in the file does not fully support the interpretation of the content of the contacts referred to in the previous paragraph (‘the contested contacts’) which the applicant has put forward before the Court. It should be noted, for example, that several of those contacts involved employees established in the EEA and that the Commission was entitled to consider that they related, at least in part, to routes which fell within its jurisdiction (recitals 139, 173, 196, 273, 274, 279, 322, 346 and 609 of the contested decision).
316 Thus, first, the ‘coffee round’ of 22 January 2001 described in recitals 173 and 174 of the contested decision concerned, inter alia, the implementation of the FSC. It is thus apparent from an internal memorandum from a Martinair employee about that meeting, as summarised in recital 174 of the contested decision, that ‘[Lufthansa] was going to decrease the FSC level on 1 February 2001 while [Cargolux, Swiss, EVA Air, KLM and British Airways] maintained the FSC level’.
317 It is true, as the applicant submits, that it does not follow from recital 174 of the contested decision that the applicant attended that meeting, to which it was nevertheless invited. That fact does not, however, affect the significance of the contact at issue.
318 Second, recital 274 of the contested decision describes an email dated 17 February 2003 by which Lufthansa sent several carriers, including the applicant, its announcement relating to an increase of the FSC. It is not apparent from that recital that that announcement did not concern intra-EEA routes, the applicant, moreover, not providing any evidence in that regard
319 Third, recital 279 of the contested decision describes an email dated 10 March 2003 by which Lufthansa sent several carriers, including the applicant, its press release concerning its increase of the FSC. It must be noted that several of the addressees of that email were established in the EEA, namely AF, Cargolux, KLM, Martinair and SAS. In the absence of any evidence to the contrary adduced by the applicant, it cannot be deduced from the content of the email of 10 Match 2003, as set out in recital 279 of the contested decision, that it did not concern intra-EEA routes. The same is true of the email of 27 April 2004 set out in recital 346 of that decision, by which Lufthansa sent to several carriers, including the applicant and carriers established in the EEA, an announcement relating to an increase of the FSC.
320 Fourth, as regards recital 609 of that decision, it describes an email dated 11 October 2001 by which applicant’s local manager in France informed several carriers, including Cargolux, AF, British Airways, Lufthansa, KLM and Martinair, that its head office had instructed him to follow the national carrier concerning the SSC. Similarly, recitals 139, 196, 273, 322, 346 and 611 of that decision concern situations occurring in the EEA and carriers established in the EEA.
321 As regards contacts implicating several carriers established in the EEA, in view of the general applicability of the surcharges found in recital 889 of the contested decision and in the absence of concrete evidence capable of showing that intra-EEA routes were excluded from the discussions, it cannot be held that only EEA‑third country routes were concerned.
322 As regards the remaining contested contacts, it is common ground between the parties that they took place in third countries or at least involved local employees of the incriminated carriers in those countries. It should be noted, however, that nothing prevented the incriminated carriers from coordinating with one another or exchanging information in such countries in relation to other freight services, including intra-EEA freight services. By way of illustration, recital 296 of the contested decision refers to an internal email from the Qantas office in Singapore dated 18 February 2003, which refers to the introduction of an FSC of a specific amount by British Airways ‘in Europe’. Similarly, recital 206 of the contested decision refers to an email dated 19 November 2001 in which the Chairman of the Hong Kong BAR CSC invites the members of the association to ‘advise [him] if [their] head offices have any plan to reduce or withdraw the [FSC] in overseas markets’.
323 This being the case, it should be noted that the present complaint would fail even if the contested contacts other than those discussed in paragraphs 315 to 321 above all related exclusively to routes which, at the relevant times, fell outside the Commission’s jurisdiction.
324 In that regard, it must be borne in mind that the Commission may rely on contacts predating the period of the infringement in order to construct an overall picture of the situation and thus 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). That is the case even where the Commission did not have jurisdiction to find and penalise an infringement of the competition rules before 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).
325 In Section 4.1 of the contested decision, entitled ‘Basic principles and structure of the cartel’, in recitals 107 and 108 of that decision, the Commission stated that its investigation had uncovered a worldwide cartel based on a network of bilateral and multilateral contacts, which took place ‘at various levels in the undertakings concerned … and in some instances related to various geographical areas’.
326 In recitals 109, 110, 876, 889 and 1046 and footnote 1323 of the contested decision, the Commission set out the way in which that multi-level structure operates. According to the applicant, the surcharges were measures of general application which were not route-specific but were intended to be applied worldwide to all routes. 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. At local level, carriers coordinated with each other with the aim, first, of better carrying out the instructions of their respective head offices and adapting them to market conditions and local regulations and, second, of coordinating and implementing local initiatives. In recital 111 of that decision, the Commission stated that the local associations of representatives of the carriers had been used for that purpose, in particular in Hong Kong and Switzerland.
327 The contacts to which the applicant refers in support of the present complaint fell precisely within that context. First, those contacts concerned, in whole or in part, the introduction and implementation of surcharges or the refusal to pay commission in Hong Kong (recitals 147, 149, 150, 165, 208, 238, 241, 294, 585, 618, 658, 663 and 666), Singapore (recital 295), Japan (recitals 244 and 257), India (recitals 617 and 701), Taiwan (recital 586), Canada (recitals 234 and 292), and on routes between third countries and, respectively, Italy (recital 201), the United Kingdom (recital 158), France (recitals 171, 197, 616 and 637) and Germany (recital 581). Second, several of those contacts either involved employees of the head offices of the incriminated carriers or referred to instructions from them or to communications with them (recitals 158, 171, 232, 585, 586 and 618,). Third, a number of those contacts either reflect local announcements made or decisions taken beforehand at central level (recitals 147, 149, 165, 171, 197, 208, 232 and 244), or are contemporaneous with discussions between the head offices or decisions taken at the level of the latter concerning surcharges (recitals 201, 294, 295, 585, 586, 588 and 616,). Fourth, many of those contacts took place in the context of or alongside local associations of representatives of the carriers (recitals 147, 149, 165, 208, 238, 295, 581, 588, 616, 617, 618, 637, 663, 666 and 701).
328 The applicant also fails to argue that those contacts did not corroborate the interpretation of other items of evidence used to establish its participation in the single and continuous infringement and which it is not alleged were outside the Commission’s jurisdiction. Thus, the 40 or so contacts which the applicant cites in the application are among the almost 90 contacts at issue which the Commission cited in recitals 757 to 759 of the contested decision to establish the applicant’s participation in the three elements of the single and continuous infringement
329 The Commission therefore did not err in relying, in the contested decision, on the contacts described in recitals 139, 147, 149, 150, 158, 165, 171, 173, 196, 197, 201, 206, 208, 232, 234, 238, 241, 244, 257, 273, 274, 279, 292, 294, 295, 322, 346, 581, 585, 586, 588, 609, 611, 616 to 618, 637, 658, 663, 666 and 701 of that decision, in order to establish the applicant’s participation in the single and continuous infringement.
330 In the third place, in so far as the applicant complains of the allegedly unlawful use of the contacts relating to Switzerland-third country routes, it must first of all be noted that the Commission did not find, in the operative part of the contested decision, any infringement on Switzerland-third country routes.
331 The applicant nevertheless submits that the Commission rendered the contested decision unlawful by referring to contacts relating to those routes. It cites, in that regard, 12 recitals of that decision (recitals 426, 427, 441, 463, 499, 501, 502, 535, 563, 690, 692 and 693) to which the contact referred to in recital 176 should be added, which the applicant classified in its pleadings in the category of contacts relating to EU-third country routes before 1 May 2004.
332 In that regard, it should be noted at the outset that the applicant’s arguments are in no way such as to show that the Commission was not justified in finding that the contacts described in those recitals also concerned routes which fell within its jurisdiction, including EU‑Switzerland routes. It is common ground between the parties that the EU carriers, including, AF, KLM, British Airways, Lufthansa, Swiss and Martinair, which it is not disputed had traffic rights on EU‑Switzerland routes, were members of the Air Cargo Council Switzerland (‘ACCS’). Those carriers actively participated in several of the contacts at issue, both with regard to the FSC and the refusal to pay commission on surcharges (see, inter alia, recitals 427, 501, 502, 690 and 692). In so far as those contacts related to routes from Switzerland without distinction, the Commission cannot be criticised for considering that they also concerned EU‑Switzerland routes, albeit to a lesser extent.
333 Furthermore, even assuming that those contacts exclusively concerned routes that fell outside the Commission’s jurisdiction, it is apparent from an examination of the contacts described in the recitals referred to in paragraph 331 above that they tend to corroborate the 90 contacts which the Commission used in recitals 757 to 759 to establish the applicant’s participation in the three elements of the single and continuous infringement and fall within the context summarised in paragraphs 325 and 326 above.
334 Thus, the contacts at issue describe the implementation and introduction of surcharges or the refusal to pay commission in Switzerland. Most of them occurred in the context of local associations of representatives of the carriers, in this case the ACCS (recitals 427, 463, 499, 501, 502, 535, 563, 692 and 693), and either reflected local announcements made or decisions taken beforehand at central level (recitals 427, 463, 501, 502 and 563), or were at least contemporaneous with discussions between the head offices or decisions taken at the level of the head offices concerning surcharges (recitals 426, 499, 690, 692 and 693).
335 The Commission therefore did not err in relying, in the contested decision, on the contacts described in recitals 426, 427, 441, 463, 499, 501, 502, 535, 563, 690, 692 and 693 of that decision in order to establish the applicant’s participation in the single and continuous infringement.
(ii) The taking into account of contacts allegedly in the public domain
336 The present complaint, which concerns recitals 273, 274, 279, 346, 411, 446, 450, 482, 495, 422, 485, 292, 409, 444, 426, 427, 441, 463, 499, 501, 502, 535, 563 as well as recitals 201, 234, 414, 668, 616, 663 and 669 of the contested decision, must be understood as being directed against the Commission’s assessments concerning the anticompetitive nature of the contacts in which the applicant participated, in so far as they are based on documents which allegedly merely reveal the carriers’ knowledge of information which was already in the public domain.
337 It must be noted that the applicant has not adduced any evidence in support of its claim that the information exchanged during those contacts was in the public domain, bearing in mind that the clarifications provided in that regard for the first time in Annex C.1 to the reply cannot be taken into account, as is apparent from paragraph 304 above. Accordingly, the factual circumstance on which the present complaint is based is in no way substantiated and must, therefore, be rejected.
338 In any event, it is apparent from the content of several of the contacts described in the recitals cited in paragraph 336 above that they do not merely refer to information in the public domain.
339 Thus, it should be observed that, in the context of the contacts described in recitals 274, 279, 346, 411, 446, 450, 482 and 495 of the contested decision, Lufthansa did not merely communicate publicly available information, but, on the contrary, sent group emails, thus revealing to all the addressees the identity of the carriers concerned (see recital 797 of the contested decision). The justification put forward by the applicant, moreover, that those emails were sent to it in the context of the operation of a joint venture established between it and Lufthansa cannot be accepted, since that justification is not consistent with the group nature of those emails; the applicant does not maintain, moreover, that the other addressees were also involved with Lufthansa in similar partnerships. Moreover, the fact that those contacts served, at least in part, to support the cartel at issue is confirmed by recital 482 of that decision, in which the Commission referred to a South African Airways’ reply to the email from Lufthansa cited in the same recital. In that reply, South African Airways informs Lufthansa of the following: ‘we have instructed our offices to implement the increase accordingly’.
340 That is also the case for a number of other recitals of the contested decision cited by the applicant. Thus, recitals 422 and 485 of that decision relate to bilateral contacts between the applicant and KLM, on the one hand, and between the applicant and Saudi Arabian Airlines, on the other, in the context of which the applicant either initiated or was the addressee of an approach to discuss the increase of the FSC with another carrier. Recital 292 of that decision concerns the holding of a multilateral meeting between carriers at which ‘the main topic was to ascertain who charges what’. Recitals 409 and 444 of that decision refer to consultations between carriers on the level of increase of the FSC or the date of its implementation in Belgium and India respectively. As regards recital 427 of the contested decision, even if it could, in isolation, be regarded as an attempt by the chairman of an association of carriers, in this case the ACCS in Switzerland, to identify information already made public about carriers’ intentions regarding the FSC, it must be assessed in the light of (i) recital 426 of the contested decision, from which it is apparent, inter alia, that the applicant was at the very least aware, on the day before the email set out in recital 427 of that decision was sent, of intentions to increase the FSC of other carriers in Switzerland before they were publicly announced (‘We expect [Korean Air] most likely to follow to CHF 0.38/kg’) and (ii) of its participation in tariff coordination efforts, around the time of that period from 21 to 24 September 2004, in Belgium (recitals 409 and 414) and Hong Kong (recital 431). Furthermore, it is apparent from the very wording of recital 499 of that decision that the information exchanged was not public. It was ‘as per [the applicant]’ that KLM decided to increase its FSC. As regards Swiss, the increase is indicated as likely and to be decided at a future board meeting. As regards recital 201 of the contested decision, it is apparent from that recital that the applicant’s regional manager in Italy did not merely summarise allegedly public information on the withdrawal of the FSC for Alitalia but indicated to that company that it would also like to know its position. As regards recital 616 of that decision, it is apparent from that recital that the French cargo association (‘the SYCAFF’) intended to meet at the end of October 2001 ‘to make [an initial assessment]’ as regards the SSC, which suggests that those upcoming exchanges between carriers went beyond a mere collection of information already publicly available on the implementation of the SSC. Lastly, recital 663 of the contested decision reproduces an email from Martinair to, inter alia, the applicant in which it suggested, ‘as [the] lobbying is effective … to hold a [Hong Kong] BAR meeting next week to discuss further steps with other carriers on how to [ensure that] all airlines charge the same SSC in the market’.
341 As to the remainder, on the assumption that the information exchanged in the course of the other contacts referred to by the applicant is in the public domain, it should be recalled that the exchange of publicly available information infringes Article 101(1) TFEU where it underpins another anticompetitive arrangement (see, to that effect, judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 281).
342 The contacts referred to in recitals 441, 463, 501, 502, 535, 563, 234, 668 and 669 of the contested decision, whether they constitute a bilateral communication on an increase in the FSC (recital 441) or broader action to identify the positions of the carriers on that subject, at the level of an association of carriers such as the ACCS (recitals 463, 501, 502, 535 and 563) or the Hong Kong BAR (recitals 668 and 669), or on the initiative of a single carrier (recital 234), clearly contribute to the monitoring of the respective actions of the parties to the cartel at issue with regard to changes in the level of surcharges and thus to the success of the cartel’s pricing coordination efforts, as evidenced, inter alia, by the information set out in paragraph 340 above.
343 The Commission therefore did not err in relying, in the contested decision, on the contacts described in recitals 273, 274, 279, 346, 411, 446, 450, 482, 495, 422, 485, 292, 409, 444, 426, 427, 441, 463, 499, 501, 502, 535, 563 as well as recitals 201, 234, 414, 668, 616, 663 and 669 of that decision in order to establish the applicant’s participation in the single and continuous infringement.
(iii) The taking into account of contacts made necessary by compliance with regulatory obligations
344 The Court finds that the applicant’s argument directed against the Commission’s findings concerning the anticompetitive nature of the contacts in which it took part, in so far as those findings are based on documents which allegedly merely reveal conduct that was necessary under the regulatory systems of certain third countries, is indissociable from the arguments developed in support of the fifth plea in law.
345 In the light of all the foregoing, this part of the plea must be rejected, without prejudice to the line of argument that the conduct at issue was necessary in view of the regulatory regimes of certain third countries, which will be dealt with in the context of the fifth plea in law below (see paragraphs 378 to 511 below).
(d) The fourth part, alleging, in essence, errors in establishing the applicant’s participation in the single and continuous infringement with regard to its intentional contribution to the overall plan pursued by that infringement
346 The applicant submits that the Commission has not demonstrated that its contacts were of more than local significance or even displayed a link of complementarity with the coordination at work in the context of the alleged overall cartel. It maintains that, in so doing, the Commission also ignored the alternative explanations given for its conduct on third country routes and failed to take proper account of the significant variations, at local level, in the level and timing of implementation of the surcharges applied by it, which differed from the findings relating to the cartel made in the contested decision. It therefore submits that it has not been established that, by its actions concerning certain aspects of the single and continuous infringement, it intended to contribute to the common objective identified by the Commission or that it actually participated in it. In particular, proof of its contribution to the objectives pursued by the core group of European carriers has not been provided.
347 The Commission disputes the applicant’s line of argument.
348 According to the case-law, an undertaking which has participated in a single and complex infringement through its own conduct, which fell within the definition of an agreement or concerted practice having an anticompetitive object for the purposes of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may accordingly be liable also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 42 and the case-law cited).
349 An undertaking may thus have participated directly in all the forms of anticompetitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, the undertaking may have participated directly in only some of the forms of anticompetitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is also entitled to attribute liability to that undertaking in relation to all the forms of anticompetitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 43).
350 It follows that three conditions must be met in order to establish participation in a single and continuous infringement, namely the existence of an overall plan pursuing a common objective, the intentional contribution of the undertaking concerned to that plan, and its awareness (proved or presumed) of the offending conduct of the other participants in which it did not participate directly (judgment of 16 June 2011, Putters International v Commission, T‑211/08, EU:T:2011:289, paragraph 35; see also judgment of 13 July 2018, Stührk Delikatessen Import v Commission, T‑58/14, not published, EU:T:2018:474, paragraph 118 and the case-law cited).
351 This part of the plea concerns the second of those conditions. It is therefore necessary to examine whether the Commission was right to consider that the applicant intended, by its own conduct, to contribute to the common objective pursued by all of the incriminated carriers.
352 In the present case, it should be noted that the applicant does not validly dispute, in the context of the present plea, that, as is apparent from recitals 872 to 876 of the contested decision, the single and continuous infringement pursued the single anticompetitive objective of restricting competition between incriminated carriers in respect of surcharges at least within the Union, the EEA and Switzerland.
353 It follows from the contested decision that the applicant intended to contribute to the achievement of that objective by its own conduct. The Commission described, in recitals 757 to 759 of the contested decision, the numerous contacts that the applicant had with the other carriers during the infringement period aimed at coordinating prices in the freight sector. As the Commission stated in recitals 755 and 756 of that decision, those contacts were both bilateral and multilateral and reveal the applicant’s involvement in the three aspects of the single and continuous infringement.
354 In addition, it is apparent from the evidence relied on in the contested decision that the anticompetitive contacts in which the applicant participated took place not only in Hong Kong (recitals 147, 149, 150, 165, 206, 208, 238, 241, 294, 368, 369, 370, 394, 430, 431, 503, 505, 540, 618, 658, 660, 663, 665, 666, 668 and 670), but also in Singapore (recitals 295 and 576), Japan (recitals 244 and 257), Italy (recitals 201, 694 and 696), India (recitals 617 and 701), Canada (recitals 234 and 292), the United Kingdom (recitals 139, 158, 196 and 273), France (recitals 171, 197, 424, 585, 609, 616 and 637), Switzerland (recitals 426, 427, 441, 463, 499, 501, 502, 535, 563, 690, 692 and 693), Germany (recital 173) and Belgium (recitals 409 and 414).
355 It is also apparent from several contacts cited in the contested decision that the applicant organised in a centralised manner the implementation at local level of coordination in relation to the surcharges by instructing its local representatives to approach their competitors. Thus, it is stated in recital 232 of that decision that an employee of the applicant instructed the local employees to actively discuss with ‘national carriers’ and ‘interlines’ in order to push for the FSC. In recital 385 of that decision it is stated that ‘[the applicant’s] head office sent internal emails on 20 July 2004 and 29 July 2004 to local … staff asking “for those who have not decided [on] the implementation of 5th round FSC, [please] do your best to lobby national carriers, so that we can follow”’. In recital 572 of that decision, it is stated that, ‘in an internal … email [from the applicant] dated 8 February 2006 [the applicant’s] head office instructed the local staff to “check, and advise [on] the plan of your national carrier and major competitor”’. In recital 683 of the contested decision, reference is made to an internal memorandum of the applicant titled ‘Handling requests for commission on surcharges’, sent to cargo sales managers on 8 July 2005, stating that ‘as long as local conditions allow [the applicant] should adopt a common approach and response to the issue [of the requests for commission on surcharges]’ and that ‘[the applicant] should therefore consider following any rejection of such request or claim for commission and other related actions that may be coordinated by your local associations [of carriers]’.
356 Furthermore, contrary to what the applicant claims, the scope of several contacts in which the applicant took part cannot be limited to EEA‑third country routes. Thus, in the absence of evidence adduced by the applicant which would suggest the contrary, it must be held that several of those contacts concerned information on surcharges which concerned both intra-EEA and EEA‑third country routes. That applies, for example, to the contacts described in recitals 274, 279, 346, 411, 446, 450, 482 and 495 of the contested decision by which Lufthansa forwarded to a number of incriminated carriers, including the applicant, its press releases announcing an increase in the amount of the FSC. That is also the case for the contacts referred to in recital 197 of that decision, on the one hand, and in recitals 409 and 414 of that decision, on the other, concerning, respectively, the FSC intentions of AF and several carriers, including European carriers, on routes from Brussels. Lastly, the meeting held at Lufthansa’s premises on 22 January 2001, to which the applicant was invited, was intended to ‘discuss the market’ and, inter alia, to address the issue of the FSC. It covered several geographical areas and an agenda item dealt specifically with the ‘Africa and Europe’ region, as is apparent from Lufthansa’s email of invitation mentioned in recital 173 of that decision and produced by the Commission as an annex to the defence.
357 Lastly, the applicant not only encouraged the continuation of the single and continuous infringement and jeopardised its discovery by failing to distance itself publicly from the content of the contacts relating to EEA‑third country routes in which it was involved or to report them to the competent administrative bodies, but also, by coordinating the surcharges and the refusal to pay commission on EEA‑third country routes and in particular those between the EEA and Hong Kong, contributed to ensuring that freight forwarders could not circumvent the payment of surcharges on EEA‑third country routes by taking alternative routes, in particular via Hong Kong, and thereby to the attainment of the common anticompetitive objective identified in recitals 872 to 876 of the contested decision.
358 In the light of the foregoing, it is necessary, first, to reject the applicant’s claim that the contacts in which it participated had no more than local significance and to find, second, that the applicant, by its conduct, intended to help to achieve the anticompetitive objective common to all of the incriminated carriers identified in recitals 872 to 876 and 899 of the contested decision (see paragraph 273 above).
359 None of the other arguments put forward by the applicant is capable of calling that conclusion into question.
360 In the first place, it must be held that the applicant’s argument alleging that the Commission failed to examine the links of complementarity between the applicant’s conduct in third countries and the ‘overall cartel arrangements’ must be rejected, having regard to the case-law referred to in paragraphs 285 and 286 above. In any event, in so far as, by that argument, the applicant calls into question the links of complementarity between the conduct relating to the EEA‑third country routes and the conduct relating to the other categories of routes, it must be rejected, for reasons similar to those set out in paragraph 357 above as regards the need for uniform application of the surcharges worldwide in order to prevent the circumvention strategies of freight forwarders.
361 In the second place, the applicant’s argument based on ‘alternate motives for [the applicant’s] conduct in [Hong Kong] and other third country jurisdictions’ must be rejected as wholly unsubstantiated. In any event, in so far as, by that argument, the applicant relies on specific features of the regulatory regimes of third countries, reference should be made to the examination of the fifth plea below, in particular the second part thereof.
362 In the third place, it is necessary to reject, by reference to paragraphs 280, 281 and 305 above, the applicant’s argument that the Commission was not entitled to conclude that it intended to contribute to the achievement of the common anticompetitive objective pursued by the single and continuous infringement, since the Commission did not establish that it participated in the ‘core group’ of European carriers.
363 In the fourth place, the applicant’s argument that the amounts of the surcharges which it applied during the infringement period varied significantly from one country to another does not show that it did not intend to contribute to the common anticompetitive objective pursued by the single and continuous infringement.
364 As stated in paragraph 326 above, the contested decision describes a cartel organised in a central and local multi-level structure, for the implementation of the surcharges, while stating that the frequent contacts at local level were intended, inter alia, to adapt the head office’s instructions to market conditions and local regulations. That is why, as the Commission observed in footnote 1323 of that decision, the rates of surcharges could vary and were subject to separate discussions ‘due to the local market conditions or regulations’.
365 As regards the specific differences identified by the applicant between the timing of the amendments to the FSC introduced by the members of the cartel at issue as set out in the contested decision and the timing actually observed by the applicant, it must be held that they are not such as to preclude its liability. According to settled case-law, the fact that an undertaking has sporadically adopted a reluctant attitude towards the coordination agreed in the context of a cartel is not such as to exonerate it, unless it has publicly distanced itself from what was agreed (see judgment of 27 June 2012, Berning & Söhne v Commission, T‑445/07, not published, EU:T:2012:321, paragraph 113 and the case-law cited).
366 In the light of the foregoing, this part of the plea must be rejected.
(e) The fifth part, alleging, in essence, errors in establishing the applicant’s participation in the single and continuous infringement in the light of its knowledge of the unlawful conduct of the other participants
367 The applicant maintains that the Commission has not established that it had the requisite knowledge of the unlawful conduct of the other participants. According to the applicant, the Commission failed to carry out a specific examination in that regard, whereas its situation, in particular the fact that it is established in Hong Kong, and the contacts held against it, relating mainly to Hong Kong and other third countries, does not support the conclusion that such knowledge existed.
368 The Commission disputes the applicant’s line of argument.
369 First of all, reference should be made to the principles applicable, in the context of a single and continuous infringement, to an undertaking’s liability for conduct in which it did not participate directly, but of which it had actual or imputed knowledge (see paragraphs 348 to 350 above).
370 Moreover, it should be borne in mind that the Commission has the burden of proving that the undertaking concerned had the requisite knowledge of the anticompetitive behaviour envisaged or implemented by the other participants in the overall cartel, but in which it did not directly participate (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 67).
371 In order to do so, the Commission must gather sufficiently precise and consistent evidence to establish that the undertaking concerned had such knowledge (see, to that effect, judgment of 20 March 2002, Sigma Tecnologie v Commission, T‑28/99, EU:T:2002:76, paragraph 51)
372 The Commission is not, however, required to show that the undertaking concerned was or ought to have been aware, in detail, of the concerted practices which took place in the context of the contacts at issue in which it did not participate. Nor is the Commission required to establish that the undertaking in question was or ought to have been aware of all of those contacts (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 193).
373 The undertaking concerned must therefore simply be aware of the general scope and the essential characteristics of the cartel as a whole (see judgment of 10 October 2014, Soliver v Commission, T‑68/09, EU:T:2014:867, paragraph 64 and the case-law cited).
374 It is apparent from paragraphs 325 and 326 above that the Commission described the general scope and essential characteristics of the cartel at issue in Section 4.1 of the contested decision. It described in more detail the collusion on the FSC in Section 4.3.2 of that decision, which it headed ‘Nature of the illicit contacts between competitors concerning the [FSC]’ and explained that the same principles applied, mutatis mutandis, to the elements of the single and continuous infringement relating to the SSC and the refusal to pay commission.
375 It is apparent from the contacts held against the applicant in recitals 757 to 759 of the contested decision that it was aware of all those principles. The examination of the many bilateral and multilateral contacts in which the applicant participated in various Member States and third countries shows that it could not have been unaware of the existence of a network of contacts in which an exchange of information and coordination took place concerning the level, timing of introduction and local implementation of the FSC and the SSC and concerning the refusal to pay commission (see, inter alia, recitals 139, 149, 150, 152, 158, 171, 173, 176, 196, 206, 241, 244, 273, 274, 279, 292, 346, 368, 369, 385, 409, 411, 422, 426, 431, 446, 450, 466, 482, 485, 495, 499, 503, 543, 563, 576, 580, 581, 585, 611, 616 to 618, 637, 660, 663, 665 to 667, 669, 683, 687 and 692 to 694 of that decision). In the light of those contacts, nor could it have been unaware of the shared expectation that discipline would be maintained on the market in relation to surcharges or of the existence of a multi-level structure. In view of the geographic scope of the announcements and discussions relating to the FSC referred to in paragraph 356 above, of the large number of countries in which the applicant took part in collusive contacts (see paragraph 354 above) and the numerous initiatives taken by the applicant to encourage, in parallel, the staff of its subsidiaries to coordinate with their competitors at local level (see paragraph 355 above), the applicant could also reasonably have known and assumed the risk that the coordination and monitoring at issue was intended to cover all routes worldwide.
376 In essence, the applicant moreover confined itself, by means of general statements relating to its establishment in Hong Kong and ‘many of the references to it’ in connection with that territory and other third countries, to complaining that the Commission had not established that it had the requisite knowledge of the anticompetitive activities of the other incriminated carriers in which it did not participate directly. In this respect, the repeated assertion that it did not belong to an alleged ‘core group’ of European carriers must be rejected as unfounded (see paragraphs 280, 281 and 306 above), whereas the assertion of its involvement in a single multilateral forum, in this case the Hong Kong BAR, is not only incapable of rebutting the foregoing findings, but is also incorrect. The documents before the Court attest to its involvement in several other forums of that type, namely, in particular, SYCAFF (recitals 616 and 637 of the contested decision), the India BAR (recital 617 of that decision), the Singapore BAR (recital 295 of that decision) and the ACCS (recitals 427, 463, 499, 501, 502, 535, 563, 692 and 693 of that decision).
377 This part of the plea must therefore be rejected and, consequently, the present plea must be rejected in its entirety.
7. The fifth plea in law, alleging numerous errors, breach of the principle of equal treatment and a failure to state reasons concerning the applicant’s activities in third countries in the light of specific regulatory regimes applicable in those countries
378 In the context of the present plea, the applicant submits, in essence, that the Commission found that it had participated in the single and continuous infringement without taking into account the plausible alternative explanation of its conduct in certain third countries, in particular Hong Kong, where local regulatory regimes required carriers to submit collective applications for approval of surcharges, entailing pricing coordination.
379 At the outset, it should be noted that, as regards the Philippines and Sri Lanka, the applicant, in response to a question put by the Court at the hearing, stated that it did not intend to maintain its arguments set out in its pleadings which were based on the regulatory framework relating to those third countries, formal note of which was taken in the minutes of the hearing.
380 This plea is divided, in essence, into three parts, alleging, first, a breach of the obligation to state reasons, second, numerous errors in the assessment of the regulatory regimes in third countries and, third, a breach of the principle of equal treatment.
(a) The first part of the fifth plea, alleging a breach of the obligation to state reasons
381 The applicant submits that the Commission infringed the obligation to state reasons by ignoring the alternative explanation for its conduct under the regulatory regimes in force in third countries. As regards, more specifically, the Hong Kong regulatory regime, it submits that the Commission, while acknowledging, in recital 992 of the contested decision, that the administrative practice of the local authorities may have encouraged collective applications, does not explain why that factor is irrelevant for the purposes of assessing the evidence relied on against it. According to the applicant, the Commission also failed to explain the Hong Kong regulatory regime in recitals 872 to 876 of that decision which relate to the single anticompetitive aim of the single and continuous infringement.
382 The Commission disputes the applicant’s line of argument.
383 In that regard, it is appropriate to refer to the principles applicable to the review of compliance with the obligation to state reasons, as set out in paragraphs 259 to 261 above.
384 In recitals 972 to 1019 of the contested decision, the Commission analysed the regulatory regimes applicable in several third countries. The regulatory regime of Hong Kong is examined in recitals 976 to 993 of that decision. In recital 1020 of that decision, the Commission concluded that no obligation imposed by a State could justify the non-application of Article 101 TFEU to the conduct complained of. Nevertheless, in recital 1021 of the contested decision, and then in recitals 1260 to 1265 of that decision, it found that, although carriers had not been prevented from acting independently by an obligation imposed by a State, the regulatory regimes and the approach of the authorities in question had encouraged anticompetitive conduct. It was on that basis that the Commission considered that it was justified to grant the general 15% reduction to the incriminated carriers.
385 The grounds of the contested decision also make it possible to understand why the Commission considered that the contacts in third countries were relevant. First, reference should be made to paragraph 357 above regarding the need for uniform application of surcharges on a global scale in order to prevent circumvention strategies by freight forwarders. Second, it follows from recitals 112 and 885 to 887 of the contested decision that recitals 888 to 890 of that decision were specifically intended to respond to arguments casting doubt on the relevance of contacts in third countries. According to the Commission, it was a matter, in particular, of enabling local staff to adapt to local conditions measures of general application, ‘on all routes, on a worldwide basis’, namely surcharges and the refusal to pay commission (recitals 889 and 890 of that decision and footnote 1323 of that decision). It is apparent from recitals 755 to 759 of the contested decision that the applicant participated directly in many of those contacts.
386 It follows that, contrary to what the applicant claims, the contested decision discloses in a clear and unequivocal manner the reasoning followed by the Commission in response to the arguments of the carriers relating to regulatory regimes in third countries, including Hong Kong.
387 Accordingly, the first part of the fifth plea must be rejected.
(b) The second part, alleging errors on the part of the Commission in the assessment of the regulatory regimes of third countries
388 The applicant submits that the Commission erred in relying on the existence of contacts between it and other carriers in third countries, so that the evidence relating to those contacts should not be taken into account. It submits that if any of its arguments is upheld, then the overall finding that it participated in the single and continuous infringement must fail, since the coordination relating to EEA‑third country routes in which it allegedly participated is not treated in the contested decision as a separate infringement.
389 The applicant claims that its conduct in third countries was lawful, and that the competent civil aviation authorities ‘required or at least sought in practice’, that all carriers active in their territory submit collective applications for approval of surcharges, which warranted pricing coordination by those carriers. The applicant also maintains that the purpose of those approval schemes was to enable regulators to determine the appropriate amount of the surcharges and that, even in the absence of a collective approval system, the carriers did not compete on price, as prices were regulated. As regards the Hong Kong surcharge regime in particular, the Commission was concerned only with knowing whether the local authority required price coordination.
390 The Commission disputes the applicant’s line of argument.
391 As a preliminary point, and in so far as, by its arguments, the applicant submits that a possible State constraint prevented the Commission from including in the single and continuous infringement routes between the EEA, on the one hand, and Hong Kong, Japan, India and Singapore, on the other, it must be recalled 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).
392 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 the case-law cited).
393 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).
394 Lastly, it is apparent from the case-law that it is for the undertakings concerned to demonstrate that a 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). Although 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).
395 It is thus apparent from the case-law that the relevant criterion for assessing whether there is a State constraint justifying the non-application of Article 101 TFEU is not that anticompetitive conduct is allowed or even encouraged but that it is made mandatory under the regulatory framework of a third country. Moreover, the fact that the regulatory framework in question consists of a system of prior approval of tariffs, enabling the competent authority to check the appropriateness of those tariffs, cannot, as such, justify such non-application so long as the possibility of competition liable to be prevented, restricted or distorted by the autonomous conduct of the operators concerned subsists.
396 It is therefore only in so far as the applicant’s argument seeks to maintain that the regulatory regimes at issue in the present case obliged the carriers to coordinate with each other on surcharges that it is capable of forming the basis, in the context of the present part of the plea, of a finding of error by the Commission.
397 It is in the light of those considerations that the three complaints raised, in essence, by the applicant must be examined. The first complaint alleges errors relating to the assessment of the Hong Kong regulatory regime. The second complaint alleges errors relating to the assessment of the Japanese regulatory regime. The third complaint extends the line of argument developed in the context of the first and second complaints to other third countries, namely India and Singapore.
(1) Hong Kong
398 Recitals 976 to 993 of the contested decision concern, first, the international air service agreements (‘ASAs’) signed by the Hong Kong Special Administrative Region of the People’s Republic of China and, second, the regulatory regime in Hong Kong. According to those recitals, the Commission found that no requirement to discuss tariffs had been imposed on carriers in Hong Kong.
399 In the first place, the Commission acknowledged, in recitals 981 to 986 of the contested decision, that the ASAs signed by the Hong Kong Special Administrative Region of the People’s Republic of China required, for the most part, that the tariffs charged by the carriers designated by the contracting countries be approved by the competent authorities, namely, for Hong Kong, the Civil Aviation Department (‘the CAD’), and that they allowed prior price consultations between the designated carriers. Nevertheless, according to that decision, those ASAs did not in any event require such consultations before an application for approval was submitted.
400 In support of that conclusion, the Commission reproduced in recital 983 of the contested decision the wording of a standard clause of several ASAs which provides:
‘The tariffs referred to in paragraph (1) of this Article may be agreed by the designated airlines of the Contracting Parties seeking approval of the tariffs, which may consult other airlines operating over the whole or part of the same route, before proposing such tariffs. However, a designated airline shall not be precluded from proposing, nor the aeronautical authorities of the Contracting Parties from approving, any tariff, if that airline shall have failed to obtain the agreement of the other designated airlines to such tariff or because no other designated airline is operating on the same route.’
401 In recital 985 of the contested decision, the Commission added that the ASA between the Czech Republic and the Hong Kong Special Administrative Region of the People’s Republic of China, for example, indicated that no country would require carriers to discuss tariffs.
402 In the second place, as regards Hong Kong’s administrative practice, the Commission found, in recitals 987 to 989 of the contested decision, that it was not established that the CAD had required consultation of the carriers in order to submit a collective application for approval of tariffs. In particular, none of the carriers provided any evidence establishing that the CAD had expressly required collective applications to be lodged.
403 In recital 992 of the contested decision, the Commission concluded, first, with regard to the FSC, 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 FSC and, second, in respect of the other surcharges, that the carriers had not claimed that the CAD required collective applications.
404 The applicant claims that that reasoning is vitiated by a number of errors. It submits, in essence, that the Commission, first, infringed the rules on the burden of proof and on the taking of evidence, second, made errors of assessment of the facts and, third, wrongly applied the defence alleging a State constraint to the regulatory regimes of third countries and infringed the principles of international comity and non-interference.
(i) The arguments alleging infringement of the rules on the burden of proof and on the taking of evidence
405 The applicant submits that, in principle, the Commission must establish the anticompetitive object of an agreement within the meaning of Article 101 TFEU, which in the present case meant providing evidence that its conduct was linked to the single and continuous infringement. According to the applicant, the Commission has not, however, demonstrated or attempted to demonstrate that its conduct had any purpose other than that of complying with the rules applicable in Hong Kong. In addition, it asserts that, since the Hong Kong regulatory framework provides a complete and plausible explanation for its contacts with other carriers, the Commission should have given it the benefit of the doubt.
406 In addition, the applicant claims to have produced, during the administrative procedure, but also in the action which gave rise to the judgment of 16 December 2015, Cathay Pacific Airways v Commission (T‑38/11, not published, EU:T:2015:985), a legal opinion drawn up by an expert in Hong Kong law which was based on a detailed analysis of the relevant legal provisions (‘the legal opinion’). First, the Commission did not respond to that opinion in the contested decision and, second, it should not have rejected or rebutted it without having its own analysis from a Hong Kong legal expert, since it is not itself qualified to comment on the matter.
407 The Commission disputes the applicant’s line of argument.
408 None of the applicant’s arguments can succeed.
409 First, it should be noted that the applicant is mistaken as to the allocation of the burden of proof, as is apparent from paragraph 394 above.
410 Consequently, having established the applicant’s participation in the single and continuous infringement on the basis of the evidence summarised in recitals 755 to 759 of the contested decision, then having found, in recitals 903 to 910 of that decision, that, since it constituted price coordination, the type of conduct at issue was among those which, by their very nature, prevent, restrict or distort competition within the meaning of Article 101 TFEU – which the applicant failed to call into question in the context of the third plea in law – the Commission was entitled to find that the applicant’s conduct had an anticompetitive object. In order to avoid the application of that article by virtue of the defence based on a State constraint, it was for the applicant to prove that its conduct in Hong Kong was justified by an obligation arising from local regulations.
411 Since the Commission took the view, following examination of the Hong Kong regulatory framework as set out in recitals 981 to 989 of the contested decision, that the evidence produced by the carriers was not sufficient to establish to the requisite standard that those carriers were forced to collude on tariffs, it was not required to give the applicant the benefit of the doubt.
412 Second, the prevailing principle in EU law is that evidence may be freely adduced and that the only relevant criterion for the purpose of assessing the evidence adduced is its credibility (see judgment of 27 April 2017, FSL and Others v Commission, C‑469/15 P, EU:C:2017:308, paragraph 38 and the case-law cited). Accordingly, the applicant is wrong to maintain that the Commission was required to produce an analysis from a Hong Kong legal expert merely because it had produced the legal opinion itself.
413 In addition, contrary to what the applicant claims, the Commission did not disregard the legal opinion when examining the evidence produced by the carriers concerning the Hong Kong regulatory regime, since it referred to the documents annexed to that opinion in footnotes 1448 and 1449 under recital 988(a) of the contested decision.
414 The question whether the legal opinion is capable of demonstrating that the Commission erred in its assessment of the rules applicable to Hong Kong is assessed in paragraphs 416 to 451 below in the context of the examination of the applicant’s arguments alleging errors in the assessment of the facts.
415 It follows from the foregoing that the applicant’s arguments alleging an infringement of the rules on the burden of proof and on the taking of evidence must be rejected.
(ii) The arguments alleging errors in the assessment of the facts
416 The applicant relies on the case-law referred to in paragraph 391 above, according to which anticompetitive conduct does not fall within the scope of Article 101 TFEU if it is imposed by State measures and undertakings have no autonomy. In the present case, according to the applicant, the Commission wrongly concluded that no requirement to discuss tariffs had been imposed on carriers in Hong Kong.
417 First, it is apparent from the legal opinion, which was produced during the administrative procedure, that the ASAs at issue, which were incorporated into national law, expressly provided for and authorised tariff consultations between carriers, so that the CAD exercised its powers in accordance with those agreements. The Commission was therefore wrong to adopt its own interpretation of the ASAs to the effect that, under their tariff provisions, the CAD preferred but did not require collective applications to be submitted.
418 Second, the applicant claims, first of all, that, although no surcharge could be applied without the CAD’s prior authorisation, the latter set up, for reasons of administrative feasibility, a system for collective approval of tariffs. The CAD thus required that the introduction of new surcharges be the result of collective applications made by the BAR CSC, within which the carriers consulted each other in order to reach an agreement, the applicant collecting, in full transparency, the information necessary for applications for approval in its capacity as chair of the CSC. The approved tariffs were mandatory for carriers who took part in the collective application. Although carriers were not forced to participate in a collective application, those carriers which did not do so were not entitled to apply an approved surcharge.
419 In particular, as regards the FSC, during the period 2002-2007, the CAD required that all index-based FSC applications be submitted collectively.
420 The applicant relies not only on the legal opinion, but also on several letters or emails exchanged between the CAD and certain carriers, or between carriers, which are annexed to that opinion or were included in the recitals of the contested decision and confirm its claims. It also submits that, on 3 September 2009, the Director-General of the CAD wrote to the President of the Commission in order to inform him of the existence of the system thus established. That letter demonstrates the merits of the legal opinion and the Commission was wrong to refuse to take it into account on the ground, set out in recital 987 of the contested decision, that it was not a ‘pre-existing document’. That decision mentions only an earlier letter from the CAD to the Commission, dated 5 September 2008, which the Commission misinterpreted. Faced with such letters, the Commission should, however, have requested clarification from the CAD concerning the Hong Kong regulatory regime then in force.
421 Next, as regards the individual applications relating to the FSC, the applicant submits that they could not be submitted in so far as the surcharges for fixed amounts, which did not reflect changes in fuel prices, did not fulfil the justification for imposing an FSC and were therefore not endorsed by the CAD. It was only after the infringement period that the CAD allowed carriers to lodge individual or collective applications for a non-index based FSC. Referring to recital 977 of the contested decision, the applicant adds that, at a meeting on 26 September 2006, the CAD informed it that it could examine individual applications for a fixed amount FSC, but that the application should be made 90 days in advance and any approval would be valid for only two months and that, given that the price of fuel was unstable, it was likely that the approved FSC rate would then be out of line with the prevailing fuel prices.
422 The Commission contests those arguments.
423 It must be held that the evidence relied on by the applicant does not contradict the conclusions reached by the Commission.
424 In the first place, without it being necessary to rule on the legal status of the ASAs in Hong Kong’s legal order or on the consistency between their clauses and the practices of the CAD, it must be observed that the applicant claims that the ASA concluded by the Hong Kong Special Administrative Region of the People’s Republic of China ‘contemplated [or] authorised’ tariff coordination, or even ‘expressly envisage[d]’ that possibility. Similarly, according to the conclusions of the legal opinion, the contested conduct of the carriers was officially approved or specifically authorised under those ASAs.
425 Those arguments do not call into question the findings made in recitals 984, 985 and 991 of the contested decision that the relevant ASAs authorised the consultations on prices between carriers but did not impose any obligation in that regard.
426 In the second place, as regards the administrative practice of the CAD, it is common ground that carriers had to obtain prior authorisation from that authority before applying their tariffs. The parties are in disagreement as to whether errors vitiate the Commission’s conclusions set out in recital 992 of the contested decision, according to which, in the context of that approval procedure, first, for surcharges other than the FSC, it was not established that the CAD required collective applications and, second, with regard to the FSC, the CAD was not prepared to accept individual applications for an index-based FSC, but could accept individual applications for a fixed amount FSC, it being understood that the fact that such applications might have been more difficult or less practical does not amount to a requirement to file collective applications.
427 The applicant’s arguments cannot succeed.
428 First, it should be noted that the letter from the CAD of 5 September 2008 states that it required, during the period 2000-2007, that all carriers wishing to impose a surcharge on cargo from Hong Kong should obtain prior authorisation, that, in that context, the CAD considered that collective applications were effective, reasonable and lawful and that such a practice was consistent with the ASAs concluded by the Hong Kong Special Administrative Region of the People’s Republic of China. The fact that it is stated that a collective application is an effective means of lodging an application and examining and approving surcharges and that the CAD regards that form of application as lawful in Hong Kong does not show that the legislation or administrative practices of Hong Kong required collective applications and excluded individual applications for surcharges.
429 Second, as regards the SSC specifically, the applicant relies on the following elements:
– a letter from the CAD of 29 March 1996 addressed to the representative of the BAR, worded as follows:
‘We also need to establish quite clearly the precise elements which are to be incorporated into the costs from which this change is to be derived. I see no point in seeking to include in this charge individual costs incurred by individual [carriers] to meet specific requirements. Each carriers’ costs will inevitably be different and each will have individual requirements. I have no wish to have to evaluate individual security costs incurred by individual airlines.’
– the legal opinion from which it is apparent, first, that applications for SSC approval were submitted collectively by the members of the BAR CSC during the period 2001-2004 and that the CAD considered and, where appropriate, approved them, and, second, that it was highly likely that the CAD would have required FSC applications to be submitted collectively in the event that the BAR CSC had not voluntarily adopted such a practice, because CAD was already considering FSC applications on a collective basis, had a preference for this type of application, individual applications could have come from a significant number of carriers and would have been administratively costly to consider, although it should be specified that it would be difficult to be definitive in this regard in the absence of evidence.
430 First, the letter from the CAD of 29 March 1996, on the assumption that it is relevant, even though it predates the introduction of the SSC, does not expressly state that collective applications relating to the SSC were mandatory, but at most shows, in the applicant’s own words, a ‘lack of enthusiasm’ on the part of the CAD for individual applications.
431 Second, the applicant’s view that all applications for surcharges had to be submitted collectively is not supported by the legal opinion. It is apparent from that opinion only that the collective applications relating to the SSC were authorised by the CAD. The considerations set out in that opinion relating to what might have been the practice of the CAD in the absence of tariff coordination initiated by the BAR CSC are speculative and cannot suffice to establish, before the General Court, the existence of an obligation or even irresistible State pressure in favour of tariff coordination. Moreover, they tend rather to confirm the Commission’s analysis of surcharges other than the FSC, set out in paragraph 426 above, according to which it had not been established that the CAD required carriers to file collective applications.
432 Third, as regards the FSC specifically, first of all, it is true that it is apparent from the legal opinion that, during the period 2000-2007, in the exercise of its discretion, the CAD authorised the applicant to conclude collective agreements with other carriers and required carriers to submit applications relating to an index-based FSC collectively.
433 Similarly, the letter from the CAD of 3 September 2009, assuming that the Commission should have taken it into account even though it postdates the infringement period, supports the legal opinion. It also sets out the conditions to which carriers were subject when they submitted collective applications for an index-based FSC.
434 That letter is worded as follows:
‘The Commission should be absolutely clear that, in respect of the cargo [FSC] index-based mechanism, we require 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’.
435 The fact remains that the applicant’s argument, as substantiated by the documents mentioned in paragraphs 432 to 434 above, does not demonstrate that the Commission erred. It should be noted that, in recital 992 of the contested decision, the Commission acknowledged that the CAD was not prepared to accept individual applications for an index-based FSC. The Commission’s conclusion that Article 101 TFEU continued to apply to contacts between carriers in Hong Kong is based on the finding that the CAD could allow individual applications for a fixed amount FSC. In those documents, it is not indicated that it was impossible to make such an application.
436 Lastly, as regards the applicant’s arguments seeking to establish that it was impossible to submit individual applications relating to the FSC, it is true that, contrary to what the Commission found in recital 988(a) of the contested decision, it is not clear from the letter from the CAD of 1 June 2005 addressed to BAR CSC that it was possible to submit such applications.
437 The letter from the CAD of 1 June 2005 reads as follows:
‘If there is any change to the list of [carriers] submitted to us, a separate application has to be made to this Department for approval. Such airline should not levy any [FSC] without the express approval of this Department. It is also the responsibility of BAR to notify this Department [of] any other changes [in] the [carrier] list’.
438 As the applicant submits, the CAD’s letter of 1 June 2005 may be interpreted as meaning that, where an airline had been added to the list of companies for which the current FSC had been approved, a new application had to be submitted to the BAR CSC in order for the new airline to appear on the list and benefit from collective approval.
439 The fact remains, however, that the letter from the CAD of 1 June 2005 is only one of the elements examined in recital 988 of the contested decision. The mere fact that that letter does not prove that the CAD allowed individual applications relating to the FSC to be examined is not sufficient to contradict all the reasons given by the Commission in recitals 987 to 989 of that decision.
440 Furthermore, although, in accordance with the case-law cited in paragraph 409 above, the burden of proof of a State constraint lies with the applicant, it must be observed that the applicant’s other arguments do not show that the CAD refused to examine individual applications.
441 The applicant relies on the following elements:
– a letter from the CAD dated 8 September 2006 to Lufthansa, worded as follows:
‘[thank] you for your letter dated 7 September 2006 informing us about the change in calculation methodology of the Lufthansa Fuel Price Index. I believe you refer to the index used in the cargo fuel surcharge mechanism submitted by BAR CSC on behalf of [carriers]. As [Lufthansa’s] cargo fuel surcharge applications are processed through BAR CSC I suggest that you ask BAR CSC to forward details of the change.’
– a letter from the CAD dated 19 September 2006 addressed to the BAR CSC, worded as follows:
‘We understand that there will be a change in the calculation methodology of [Lufthansa’s fuel price index] which will [affect] the cargo [FSC] mechanisms submitted by BAR CSC on behalf of [carriers]. We [would] be grateful if BAR CSC could advise [us] how the current mechanism will be affected and what changes are required.’
– an email from a Lufthansa employee dated 19 September 2006 to an employee of the applicant, worded as follows:
‘Because the CAD does not accept applications by individual [carriers], but requires a joint BAR CSC application [Lufthansa Cargo] will continue to participate in the joint BAR CSC filings of the [FSC] with the CAD.’
442 The letters from the CAD dated 8 and 19 September 2006 refer to changes in Lufthansa’s fuel price index, but at no point refer expressly to the prohibition on a carrier submitting an individual application for a fixed-amount FSC.
443 As regards the email from a Lufthansa employee of 19 September 2006, it is, as the Commission points out, a document originating from the carriers themselves. In addition, it is apparent from the document submitted for the Court’s assessment that that email forms part of an exchange originating from an earlier email of 15 September 2006 in which Lufthansa stated that it no longer wished to communicate information on the evolution of its index relating to the FSC or to maintain or update that index. It is not clear from that exchange, even interpreted in the light of the CAD’s letter of 1 June 2005, that, as the applicant maintains in the reply, the CAD’s refusal to consider Lufthansa’s individual application arises from an unconditional obligation to submit collective applications concerning the FSC through the BAR CSC. Consequently, Lufthansa’s email of 19 September 2006 does not constitute evidence that the CAD refused to examine individual applications for a fixed amount FSC.
444 Moreover, in order to contradict the findings in recital 977 of the contested decision, the applicant refers to a meeting with the CAD reportedly held on 29 September 2006, the content of which was set out in the legal opinion. It submits that, on that occasion, the CAD confirmed to it that, although it did not approve individual applications for an index-based FSC, it would examine individual applications for a fixed amount FSC, provided that they were submitted 90 days in advance, while stating that any approval would be valid for only two months. According to the applicant, an application for a fixed amount FSC was unrealistic, since it ‘was much less practical on the timetable envisaged, as the fuel price [was] volatile and the approved FSC rate would be likely to be out of line with current fuel prices’ and ‘[this] would likely lead to under- or over-recovery and inevitable complaints from freight forwarders and shippers’.
445 However, it must be observed that that line of argument tends rather to contradict the applicant’s other claims that the CAD refused individual applications for a fixed amount FSC.
446 In addition, it is to no avail that, in the reply, the applicant claims that the concept of a non-index-based FSC did not appear until the end of 2006, owing to the Commission’s investigation, that it was because of the insistence of the carriers that the CAD declared, at the meeting held on 29 September 2006, that it would accept individual applications for a fixed amount FSC and that this practice was only really accepted at the beginning of 2007.
447 In that regard, it should be recalled that an annex to an application may be taken into consideration only in so far as it supports or supplements arguments expressly set out by the applicant in the body of the application and in so far as it is possible for the Court to determine precisely what are the matters the annex contains that support or supplement those arguments (see paragraph 297 above).
448 In support of its claims, the applicant, in the reply, merely refers to Annex C.1 to the reply, which the Court held in paragraph 304 above to be inadmissible in so far as it was referred to in support of the third part of the third plea in law. It must be noted that, in the context of the present part of the plea, the applicant has not indicated how that annex would support its claims that it was impossible to submit individual applications to the CAD for a fixed amount FSC, nor has it specified the elements of that annex, comprising 10 pages, which are supposed to support or supplement those claims. The annex in question cannot therefore be taken into consideration in the examination of this part of the plea, as the Commission argued at the hearing.
449 Since the applicant has not produced any other evidence in support of the claims at issue, they must therefore be rejected.
450 Fourth, as regards the applicant’s arguments relating to the meeting with the CAD reportedly held on 29 September 2006, it should also be noted that the fact that the submission of individual applications relating to the FSC, although authorised, appears, according to the applicant’s claims, to be ‘much less practical’ and leads to ‘under- or over-recovery and inevitable complaints from freight forwarders and shippers’, does not amount to a formal obligation to lodge collective applications. Those same claims, which are only substantiated by the applicant by means of the statements in the legal opinion that ‘[the] individual applications [would be] burdensome to prepare and commercially impracticable both to [carriers] and the CAD because the resulting surcharge would not accurately track variations in aviation fuel prices’, cannot be treated as objective and consistent evidence that conduct was unilaterally imposed on an operator by the national authorities through the exercise of irresistible pressure, such as the threat of the adoption of State measures liable to cause it to suffer significant losses, within the meaning of the case-law cited in paragraph 392 above.
451 It follows from the foregoing that the applicant has not shown that the Hong Kong regulatory framework required it to discuss its tariffs with other carriers and made it impossible to submit an individual application to the CAD for a fixed amount FSC. It does not therefore establish that the Commission erred in finding, in the contested decision, that the Hong Kong legislation did not preclude the application of Article 101(1) TFEU.
(iii) The arguments alleging the inapplicability of the defence alleging the existence of a State constraint in third countries and breach of the principles of international comity and non-interference
452 First, the applicant submits that the Commission erred in finding that the defence alleging the existence of a State constraint also applied to the legislation of third countries, whereas public authorities in those countries are not required to comply with EU law. It also complains that the Commission failed to take account of the fact that carriers did not enjoy any real commercial autonomy in the Hong Kong regulatory framework.
453 Second, the applicant claims that the contested decision breaches the principles of international comity and non-interference. First of all, the applicant submits that, although it is apparent from the letter from the CAD of 3 September 2009 that tariff coordination was required by that authority, the Commission ignored that factor and considered that carriers had to refuse to comply with that requirement at the risk of having their licences revoked. Furthermore, following receipt of that letter, issued by a body of a sovereign foreign government seeking to inform it of the existence of the regulatory regime in force, it should have asked the CAD for clarification.
454 Furthermore, the applicant maintains that the Commission is required to comply with all the requirements imposed on undertakings by the authorities of a third country and that it was wrong to distinguish between obligations arising under law and those resulting from the administrative practice of an authority.
455 Lastly, the Commission was aware of the practice of the CAD. According to the applicant, it is apparent from two letters, dated 27 November and 23 December 2003, that it intervened with the CAD on behalf of a number of European carriers, for the purpose of approving an FSC in an amount of one Hong Kong dollar, or of not applying that surcharge, and that it was then faced with the CAD’s reluctance and subsequently complained of a ‘surprising shift’ in the attitude of the latter. It thus attempted to influence the CAD’s procedure for approving tariffs, which is hardly compatible with the view that the Hong Kong regulatory regime has no impact on the finding of an infringement.
456 The Commission disputes the applicants’ arguments.
457 None of the applicant’s arguments can succeed.
458 In the first place, as regards the applicant’s argument that the defence alleging the existence of a State constraint should not apply to the legislation of third countries, it should be noted that this is contradicted by the case-law (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).
459 The fact that the authorities of third countries, such as those of Hong Kong, are not required to comply with EU law is not capable of calling that conclusion into question. It is apparent from the case-law cited in paragraphs 391 to 393 above that the defence based on a State constraint is justified not by the principle of sincere cooperation, direct effect or the primacy of EU law, but by the lack of autonomy of the undertakings concerned in the choice of their commercial policy which justifies the non-application of Article 101 TFEU.
460 Although it is true that, unlike third countries, Member States are obliged 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 the examination of the applicability of Article 101 TFEU to the conduct of undertakings which are complying with a Member State’s legislation, prior evaluation of that legislation should be directed solely to ascertaining whether that legislation prevents undertakings from engaging in autonomous conduct which prevents, restricts or distorts competition, so that the national legislation’s compatibility with the competition rules of the Treaty 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).
461 In the present case, first of all, it should be noted that the applicant’s argument is based on the premiss that, first, it is apparent from the CAD’s letter of 3 September 2009 that all the applications relating to the FSC had to be lodged collectively and, second, it is established that the Hong Kong regulatory framework required carriers to coordinate on tariffs.
462 However, that premiss is incorrect, whether or not the Commission should have taken account of CAD’s letter of 3 September 2009, even though it postdates the infringement period. First, it was noted, in paragraphs 434 and 435 above, that that letter did not indicate that all the applications relating to the FSC had to be submitted collectively, but that the applications relating to the index-based FSC had to satisfy that condition, which was acknowledged by the Commission in recital 992 of the contested decision. Second, as is apparent from paragraphs 416 to 451 above, the applicant has failed to establish that the CAD required tariff coordination between carriers, so that it cannot reasonably argue that the Commission obliged it not to comply with a coordination obligation at the risk of having its licence revoked.
463 Next, the applicant merely refers to international comity, mentioning certain general obligations which were allegedly inferred from it by the courts of the United States of America, and refers to the principle of non-interference, maintaining that it has not yet been relied on to challenge the finding of an infringement, since the EU Courts have not found any conflicts of law, without indicating why those principles would require an EU institution to contact a foreign authority in a situation such as that in the present case. The applicant does not explain in what way those principles are breached by the Commission’s failure to contact the CAD following the dispatch of the letter from the CAD of 3 September 2009 or, a fortiori, how that alleged breach could entail the annulment in whole or in part of the contested decision.
464 The application of Article 101 TFEU to conduct of undertakings which occurs and is implemented in third countries is justified in the light of public international law, where it is foreseeable that that conduct will have immediate and substantial effects within 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).
465 By contrast, no principle of public international law obliges the Commission, once the undertakings in question have produced prima facie evidence of a State constraint, to contact the authorities of the third country concerned in order to obtain further information. Where such prima facie evidence is provided, it is simply up to the Commission, in accordance with the case-law cited in paragraph 394 above, to resort to other evidence. The prevailing principle in EU law is that evidence may be freely adduced and the only relevant criterion for assessing the evidence adduced is its credibility, in accordance with the case-law cited in paragraph 412 above.
466 In so far as the applicant submits that the Commission refused to recognise that the Hong Kong authorities had derived their competences from the sovereign power of the People’s Republic of China, or applied Article 101 TFEU by ignoring the existence of the regulatory framework in force in Hong Kong, such an argument cannot succeed. It must be observed that the Commission acknowledged the existence of the Hong Kong regulatory framework since, in the light of the evidence submitted by the carriers, it examined, in recitals 976 to 993 of the contested decision, whether that framework required tariff coordination. In addition, that examination was carried out in accordance with the case-law cited in paragraphs 391 to 393 above, under which there is, in principle, no risk of conflict between the rules of EU law and those of the third country concerned, since that case-law justifies the non-application of Article 101 TFEU where anticompetitive conduct on the part of economic operators is made mandatory by the regulatory regimes of third countries.
467 Lastly, the applicant is wrong to claim that the Commission drew a distinction between the obligations laid down by the law of a third country and those imposed by the administrative practice of a foreign authority. It is apparent from recitals 974 and 975 of the contested decision that the Commission, in response to the arguments of carriers relating to regulatory regimes in third countries, considered it necessary to assess not only the ASAs and the relevant legal provisions, but also the administrative practice in third countries. In that regard, it examined, inter alia, in recitals 987 to 989 of that decision, the CAD’s practice when assessing the Hong Kong regulatory regime, before concluding, in recital 992 of that decision, that it did not follow from that practice that tariff coordination was mandatory. Thus, it placed on the same footing the obligations laid down by law and those arising from an administrative practice.
468 In the second place, the fact that, during 2003, certain Commission departments, solicited by several European carriers, might have prepared or sent a letter to the CAD in order to deplore certain of the latter’s practices relating to the SSC cannot justify annulment of the contested decision.
469 First of all, the Commission contends, without being contradicted by the applicant, that one of the two documents in the file constitutes a draft letter from the Commission’s delegation in Hong Kong dated 27 November 2003 which remained in draft form and was never sent as such to the CAD.
470 Next, as the Commission submits, both in recital 988(e) of the contested decision and, before the Court, neither of those documents constitutes a decision taken pursuant to Article 101 TFEU approving a tariff agreement between carriers.
471 Lastly, in the two documents included in the file, there is no mention of a regulatory practice of the CAD according to which the carriers were required to collude on tariffs prior to their approval. At most, it is apparent from the draft letter of 27 November 2003 that certain Commission departments might have considered requesting the CAD to approve an SSC in an amount of one Hong Kong dollar (HKD) until further notice for all carriers operating routes from and to Hong Kong. Those documents do not therefore show that the Commission was aware of a procedure in force in Hong Kong requiring the applications for approval of the surcharges to be made collectively.
472 It follows that the applicant’s arguments alleging the inapplicability of the defence alleging the existence of a State constraint in third countries and breach of the principles of international comity and non-interference must be rejected.
473 Accordingly, the applicant’s arguments alleging errors relating to the assessment of the Hong Kong regulatory regime must be rejected in their entirety.
(2) Japan
474 The applicant claims that the Commission erred in its assessment of the existence of a State constraint in Japan. It maintains that the ASAs concluded by Japan had direct effect in the Japanese legal system, that, under Japanese law, carriers had to submit applications for approval of their tariffs to the Japanese Civil Aviation Bureau (‘JCAB’) and that the approval would be issued by the Minister of Land, Infrastructure, Transport and Tourism (‘MILTT’), under whose responsibility the JCAB falls, only if the tariffs were consistent with the relevant ASA for the route in question. The ASA concluded between the Hong Kong Special Administrative Region of the People’s Republic of China and Japan contains a clause requiring the carriers designated on any route to agree on tariffs.
475 The applicant claims that the Commission has not shown that the MILTT infringed Japanese law by establishing that system of approval, that, in any event, the MILTT had chosen that system and that undertakings cannot be required to bring legal proceedings against acts of the sovereign authorities of a third country.
476 The Commission disputes this line of argument.
477 Recitals 995 to 1012 of the contested decision relate, first, to the ASAs concluded by Japan and, second, to the Japanese regulatory regime. According to those recitals, the Commission considered that no requirement to discuss tariffs had been imposed on carriers in Japan.
478 In the first place, as regards the ASAs concluded by Japan, recital 995 of the contested decision reproduces the wording of a clause contained in the agreement concluded with the Kingdom of the Netherlands which is found in other agreements and which provides as follows:
‘Agreement on tariffs shall, wherever possible, be reached by the designated airlines concerned through the rate-fixing machinery of the International Air Transport Association. When this is not possible, tariffs in respect of each of the specified routes shall be agreed between the designated airlines concerned’.
479 After noting, in recital 996 of the contested decision, that, according to one carrier, the ASAs required, rather than permitted, price agreements, the Commission stated, in recital 997 of that decision, that the agreement concluded with the United Kingdom of Great Britain and Northern Ireland had been amended in 2000 by a Memorandum of Understanding providing that designated carriers were not required to consult each other on tariffs prior to a request for approval. According to recitals 1005 to 1008 of that decision, even though it is apparent from the ASAs that, subject to certain conditions, carriers must agree on tariffs, such discussions are strictly limited to the carriers designated on specified routes and do not in any event concern general discussions between multiple carriers. Lastly, in practice, the parties to the ASAs would not claim that those agreements were applicable, so that the obligations would rather be derived from the national legal and administrative provisions in force in Japan, which would be reinforced by the fact that the parties claim that coordination was required for the FSC, but not for the SSC
480 In the second place, as regards Japanese legislation and administrative practice, the Commission mentioned, in recitals 998 to 1004 of the contested decision, certain provisions of the Japanese law on civil aviation and statements by carriers concerning the JCAB directions. In recitals 1009 to 1011 of that decision, the Commission stated, first, that it was not expressly stated in that law that tariff coordination was mandatory and, second, that the incriminated carriers had adduced no evidence to show that such an obligation had been imposed by the administrative practice of the JCAB.
481 The applicant’s argument is not capable of demonstrating that those assessments are vitiated by illegality.
482 In the first place, even assuming that the ASAs are directly applicable in the Japanese legal order and that their tariff clauses require tariff coordination between carriers unconditionally, it is apparent from the tariff clause in the ASA concluded between the Hong Kong Special Administrative Region of the People’s Republic of China and Japan, reproduced in the application, that the scope of that obligation is limited to the carriers designated on specific routes, as stated by the Commission in recital 1007 of the contested decision.
483 Since that clause strictly limits tariff discussions to carriers designated on specific routes, it cannot in any event justify general discussions between multiple carriers of the type constituting the single and continuous infringement.
484 In the second place, according to the applicant, the approval procedure established by the MILTT was applicable to all routes from Japan in order to meet the requirements laid down by ‘the ASAs’ and ‘[provided for] initial applications by the Japanese airlines who would obtain approval. Other airlines were then obliged to submit their own applications for an identical approval’.
485 First, the fact that non-Japanese carriers were required to submit their own applications for ‘an identical approval’ as that already applied for by the Japanese carriers, even if it were established, does not mean that they were formally required to consult with Japanese carriers or subjected to irresistible State pressure to that end. The applicant’s argument seeks rather to establish that, in practice, non-Japanese carriers aligned their tariffs with those of the Japanese carriers which had been previously approved.
486 Second, and in any event, the applicant adduces no evidence in support of its claims relating to the procedure for approving tariffs, either in the application or in the reply, or even in response to a question put by the Court in the context of the measures of organisation of procedure.
487 The applicant’s arguments alleging errors relating to the assessment of the Japanese regulatory regime must therefore be rejected.
(3) Other third countries
488 The applicant claims, first, that the contacts between the carriers in India and Singapore were dictated by local regulatory regimes and that the Commission was not justified in relying on them, by referring to its arguments relating to the Hong Kong and Japan regulatory regimes based on the absence of the anticompetitive object of its conduct, the inapplicability of the defence alleging the existence of a State constraint in third countries and breach of the principles of international comity and non-interference.
489 Second, the applicant claims that the Commission did not carry out an adequate examination of the regulatory regimes in the third countries in question. In particular, it did not seek to obtain a legal opinion from experts and merely carried out incomplete research or relied on its own perception of the local rules. Thus, the Republic of Singapore and India are addressed, respectively, only in recitals 1016 and 1010 of the contested decision. As regards India in particular, the Commission rejected the legal opinion of an expert in Indian law produced by the applicant during the administrative procedure. According to the applicant, the Commission should have heard the governments of those third countries, a fortiori in so far as Article 101 TFEU does not have direct effect in those countries, before rejecting the arguments of the carriers.
490 In recital 1014 of the contested decision, the Commission found that the tariff clauses of the ASAs concluded by India provided that the tariffs would, if possible, be agreed between the designated carriers concerned for each of the specified routes and that those routes were to be approved by the competent Indian authorities. It is apparent from recital 1016 that the ASAs concluded by the Republic of Singapore generally contain a clause according to which tariffs will, if possible, be agreed between the designated carriers concerned for each of the specified routes.
491 In recital 1019 of the contested decision, the Commission found that ‘[following] the reasoning … in respect of Hong Kong and Japan’ the defence alleging the existence of a State constraint had not been substantiated in regard to India and Singapore.
492 In the same recital, the Commission clarified that this analogy was valid on the grounds that, first, the tariff provisions in the ASAs applicable in India and Singapore were limited to designated carriers on specified routes and did not extend to general tariff discussions between multiple operators providing services to multiple country destinations and, second, it had not been demonstrated that the applicable national legal and administrative provisions required tariff coordination.
493 None of the applicants’ arguments demonstrates that those assessments are vitiated by errors.
494 In the first place, in order to claim that the Commission erred in its examination of the Indian and Singapore regulatory regimes, the applicant cannot confine itself to referring to its first and second complaints relating to the Hong Kong and Japan regulatory regimes. It is apparent from paragraphs 398 to 487 above that the complaints relating to those regulatory regimes must be rejected. Consequently, the argument that the reasoning developed in the context of those complaints should be extended to the other territories covered by specific legislation must also be rejected.
495 In the second place, as regards the applicant’s arguments that the Commission carried out an inadequate examination of the Indian and Singapore regulatory regimes, since it merely carried out incomplete research or relied on its own perception of the local rules, it should be borne in mind at the outset that, in accordance with the case-law cited in paragraph 394 above, the burden of proof of a State constraint lies with the carriers.
496 As regards India, the applicant merely, first, claims that the Commission failed to take account of the legal opinion of an expert in Indian law that it appended to its reply to the Statement of Objections and, second, produced that opinion as an annex, without putting forward any more specific arguments in its written pleadings. Accordingly, the Court is not in a position either to understand how the analysis of the Indian regulatory regime carried out by the Commission is incorrect or to determine precisely which elements of that annex support the applicant’s arguments (see paragraph 297 above). As regards Singapore, the applicant merely criticises the fact that the Commission devotes only recital 1016 of the contested decision to examining the regime in force in that third country, without explaining the elements which might have been omitted or assessed incorrectly by the Commission and, therefore, does not enable the Court to find any error.
497 In the third place, for the reasons set out in paragraphs 412 and 463 above, the arguments criticising the Commission for not seeking legal advice from experts or for not consulting the competent authorities of third countries are unfounded. The claim, which is not otherwise substantiated, that it is apparent from an earlier Commission decision that the Commission had consulted the Greek authorities on certain factual evidence in an earlier procedure applying Article 101 TFEU has no bearing in that regard. It cannot be inferred from this that the Commission was required to consult the authorities of a third country.
498 It follows from all the foregoing that the present complaint, which extends the line of argument developed in the context of the first and second complaints to other third countries, must be rejected, as must the second part of the fifth plea in its entirety.
(c) The third part, alleging a breach of the principle of equal treatment
499 The applicant submits that the Commission breached the principle of equal treatment in the light of the treatment given to another carrier. According to the applicant, the objections raised against that carrier were dropped as a result of the existence of a State constraint in Dubai (United Arab Emirates), even though the relevant regulations have the same characteristics as those of Hong Kong.
500 The applicant adds that the objections were also dropped against certain carriers under the Indian and Japanese national regulations referred to in the present plea. Thus, the contested decision is not addressed to the Indian national carriers and, for Japan, it is addressed only to Japan Airlines, but not to All Nippon Airways and Nippon Cargo Airlines.
501 The Commission disputes the applicant’s line of argument.
502 It should be noted at the outset that, even if the Commission had committed an unlawful act by not holding other carriers liable, such an unlawful act, which has not been raised before the Court in the present action, cannot in any way lead it to find discrimination and, consequently, an unlawful act in relation to the applicant, since it follows from the case-law that the principle of equal treatment must be reconciled with the principle of legality, according to which no one may rely, for his own benefit, on an unlawful act committed in favour of another (judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P EU:C:2015:614, paragraph 55).
503 In addition, with regard to Dubai, it should be borne in mind that the principle of equal treatment, which constitutes a general principle of EU law, enshrined in Article 20 of the Charter, requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 51 and the case-law cited).
504 Breach of the principle of equal treatment as a result of different treatment thus presupposes that the situations concerned are comparable, having regard to all the elements which characterise them. The elements which characterise different situations, and hence their comparability, must in particular be determined and assessed in the light of the subject matter and purpose of the EU act which makes the distinction in question (see judgment of 20 May 2015, Timab Industries and CFPR v Commission, T‑456/10, EU:T:2015:296, paragraph 202 and the case-law cited).
505 In the present case, it should be noted that the applicant’s argument is based on the premiss that ‘the statements and practice’ of the competent administrative authority in Dubai are similar to those of the Hong Kong CAD, so that, in the territories concerned, the carriers are in a similar situation, namely that they were required to discuss surcharges before requesting their approval.
506 That premiss is incorrect.
507 It is true that, before the Court, the Commission stated that the contacts between carriers in Dubai had not been relied on in the contested decision on the ground that it had been the addressee of a letter from the Dubai Civil Aviation Authority (DCAA) from which it was apparent that the latter mandated carriers to coordinate with each other on tariffs.
508 The fact remains that, as is apparent from paragraphs 416 to 451 above, the applicant has failed to establish that the carriers were subject to a requirement of tariff coordination in Hong Kong.
509 Accordingly, the applicant is not justified in claiming that the situation of carriers in Hong Kong was comparable to that of carriers subject to the Dubai regulatory regime in that they are, in the territories concerned, subject to the obligation to coordinate with each other with regard to tariffs.
510 Therefore, the third part of the fifth plea must be rejected.
511 It follows from the foregoing that the fifth plea in law must be rejected in its entirety.
8. The seventh plea in law, alleging errors in the calculation of the amount of the fine
512 The present plea, by which the applicant complains that the Commission committed several errors in calculating the amount of the fine, is divided into three parts, concerning, first, the determination of the value of sales, second, the determination of the gravity factor and, third, the mitigating circumstances to be taken into consideration.
(a) The first part, relating to the determination of the value of sales
513 The applicant submits that, as regards the determination of the value of sales, the Commission breached the 2006 Guidelines and the principles of proportionality and equal treatment. It puts forward arguments relating, first, to the taking into account of turnover on the inbound routes and, second, to the taking into account of the full price of freight services rather than just the surcharge revenue collected.
514 The Court considers it appropriate to examine the applicant’s arguments concerning the taking into account of the full price of freight services rather than just surcharge revenue before its arguments relating to the taking into account of turnover on inbound routes.
(1) The arguments relating to the taking into account of the full price of freight services
515 The applicant submits that the Commission was not entitled to include in the value of sales the full price of freight services, since the single and continuous infringement related to only one component of the separate price, identified and accounted for separately, namely surcharges. It adds that the Commission has produced no evidence or analysis in order to reject its argument that a ‘waterbed effect’ would prevent the coordination of surcharges from having an impact on the overall price of freight services. In its reply, the applicant adds that it would be contradictory to include tariff-related revenues in the value of sales, since the objections provisionally raised in that regard in the Statement of Objections have been dropped. It also invokes the Commission’s decision-making practice and states that the amount of the fine would have been the same if the single and continuous infringement had related to the entire price of freight services.
516 The Commission disputes the applicant’s line of argument.
517 It is appropriate to examine, first, the complaint alleging an infringement of the 2006 Guidelines, second, the complaint alleging a breach of the principle of proportionality and, third, the complaint alleging a breach of the principle of equal treatment.
(i) The first complaint, based on an infringement of the 2006 Guidelines
518 As a preliminary point, it should be noted that, in the application, the applicant does not identify the provisions of the 2006 Guidelines which, in its view, the Commission infringed by including in the value of sales the full price of freight services. It may, however, be inferred from its line of argument that it seeks to rely on an infringement of point 13 of those guidelines.
519 It must be borne in mind that the concept of the value of sales, within the meaning of point 13 of the 2006 Guidelines, reflects the price, excluding tax, charged to the customer for the goods or services which were the subject of the infringement at issue (see, to that effect, judgments of 6 May 2009, KME Germany and Others v Commission, T‑127/04, EU:T:2009:142, paragraph 91, and of 18 June 2013, ICF v Commission, T‑406/08, EU:T:2013:322, paragraph 176 and the case-law cited). Having regard to the objective pursued by that point, reproduced in point 6 of those guidelines, which consists in adopting as the starting point for the calculation of the amount of the fine imposed on an undertaking an amount which reflects the economic significance of the infringement and the relative size of the undertaking’s contribution to it, the concept of the value of sales must thus be understood as referring to sales on the market concerned by the infringement (see judgment of 1 February 2018, Kühne + Nagel International and Others v Commission, C‑261/16 P, not published, EU:C:2018:56, paragraph 65 and the case-law cited).
520 The Commission may therefore use the total price which the undertaking charged its customers on the relevant market for goods or services to determine the value of sales, without it being necessary to distinguish or deduct the various elements of that price according to whether or not they were the subject of coordination (see, to that effect, judgment of 1 February 2018, Kühne + Nagel International and Others v Commission, C‑261/16 P, not published, EU:C:2018:56, paragraphs 66 and 67).
521 As the Commission notes, in essence, the FSC and the SSC are not distinct goods or services which may be the subject of an infringement of Articles 101 or 102 TFEU. On the contrary, as is apparent from recitals 17, 108 and 1187 of the contested decision, the FSC and the SSC are only two elements of the price of the services at issue.
522 It follows that, contrary to what the applicant maintains, point 13 of the 2006 Guidelines did not preclude the Commission from taking into account the entire amount of sales related to the services at issue, without dividing it into its constituent parts.
523 In addition, it should be observed that the approach advocated by the applicant amounts to considering that those elements of the price which were not specifically coordinated between the incriminated carriers must be excluded from the value of the sales.
524 In that regard, it should be borne in mind that there is no valid reason to exclude from the value of sales any inputs the cost of which is outside the control of the parties to the alleged infringement (see, to that effect, judgment of 6 May 2009, KME Germany and Others v Commission, T‑127/04, EU:T:2009:142, paragraph 91). Contrary to what the applicant maintains, the same applies to price elements which, like tariffs, were not specifically the subject of coordination, but form an integral part of the selling price of the product or service in question (see, to that effect, judgment of 15 March 2000 Cimenteries CBR and Others v Commission, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, EU:T:2000:77, paragraph 5030).
525 To hold otherwise would have the consequence of requiring the Commission not to take gross turnover into account in some cases but to do so in others by reference to a threshold which would be difficult to apply and would give scope for endless and insoluble disputes, including allegations of unequal treatment (judgment of 8 December 2011, KME Germany and Others v Commission, C‑272/09 P, EU:C:2011:810, paragraph 53).
526 The Commission therefore did not contradict itself nor did it infringe point 13 of the 2006 Guidelines when it concluded, in recital 1190 of the contested decision, that the entire amount of sales linked to the freight services should be taken into account, without it being necessary to split it into its constituent elements.
527 This present complaint must therefore be rejected.
(ii) The second complaint, based on a breach of the principle of proportionality
528 It must be recalled that the principle of proportionality requires that the measures adopted by the EU institutions must not exceed what is appropriate and necessary for attaining the legitimate objective pursued (judgments of 13 November 1990, Fedesa and Others, C‑331/88, EU:C:1990:391, paragraph 13, and of 12 September 2007, Prym and Prym Consumer v Commission, T‑30/05, not published, EU:T:2007:267, paragraph 223).
529 In the procedures initiated by the Commission in order to penalise infringements of the competition rules, the application of the principle of proportionality requires that fines must not be disproportionate to the objectives pursued, that is to say, by reference to compliance with those rules, and that the amount of the fine imposed on an undertaking for an infringement in competition matters must be proportionate to the infringement, seen as a whole, having regard, in particular, to the gravity and the duration thereof (see judgment of 29 February 2016, Panalpina World Transport (Holding) and Others v Commission, T‑270/12, not published, EU:T:2016:109, paragraph 103 and the case-law cited).
530 In order to assess the gravity of an infringement of the competition rules, the Commission must take account of a large number of factors, the nature and importance of which vary according to the type of infringement and the particular circumstances of the case. Those factors may, depending on the circumstances, include the volume and value of the goods in respect of which the infringement was committed and the size and economic power of the undertaking and, consequently, the influence which the undertaking was able to exert on the market (judgment of 3 September 2009, Prym and Prym Consumer v Commission, C‑534/07 P, EU:C:2009:505, paragraph 96).
531 According to the case-law, the proportion of the overall turnover which derives from the sale of the goods or services which are the subject of the infringement best reflects the economic importance of that infringement (judgment of 29 February 2016, Panalpina World Transport (Holding) and Others v Commission, T‑270/12, not published, EU:T:2016:109, paragraph 106).
532 The value of sales also has the advantage of being an objective criterion which is easy to apply. It thus means that the action of the Commission is more foreseeable for undertakings and enables them, in pursuit of an objective of general deterrence, to assess the size of the fine they are liable to incur when they decide to take part in an unlawful cartel (see, to that effect, judgment of 29 February 2016, Panalpina World Transport (Holding) and Others v Commission, T‑270/12, not published, EU:T:2016:109, paragraph 159).
533 Point 6 of the 2006 Guidelines sets out those principles as follows:
‘… the combination of the value of sales to which the infringement relates and of the duration of the infringement is regarded as providing an appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement. Reference to these factors provides a good indication of the order of magnitude of the fine and should not be regarded as the basis for an automatic and arithmetical calculation method.’
534 In recital 1190 of the contested decision, the Commission specifically concluded that account should be taken of the overall turnover from the sale of freight services rather than only of the elements of their price which were specifically the subject of coordination between the incriminated carriers, namely the surcharges.
535 Contrary to what the applicant maintains, the mere fact that the surcharges represented only a limited percentage of the total revenue linked to the sale of freight services and that the exclusion from the value of sales of the other components of their prices would have resulted in a substantially lower fine is not such as to show that that approach was disproportionate in the light of the economic importance of the single and continuous infringement.
536 The very fact that an undertaking achieves sales at prices of which only one or several elements have been fixed or have been the subject of unlawful exchanges of information entails a distortion of competition affecting the entire relevant market (see, to that effect, judgment of 23 April 2015, LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 62).
537 As regards the impact of the single and continuous infringement on the overall price of freight services, it must be borne in mind that the determination of the value of sales does not take account of criteria such as the actual impact of the infringement on the market or the damage caused (see, to that effect, judgments of 29 February 2016, UTi Worldwide and Others v Commission, T‑264/12, not published, EU:T:2016:112, paragraph 259, and of 12 July 2018, Viscas v Commission, T‑422/14, not published, EU:T:2018:446, paragraph 193).
538 It is only at the separate and later stage of determining the gravity factor, which is the subject of the second part of the present plea, that the Commission may take account, where appropriate, of such a criterion (see, to that effect, judgment of 29 February 2016, Panalpina World Transport (Holding) and Others v Commission, T‑270/12, not published, EU:T:2016:109, paragraph 94).
539 It follows that the approach followed in recital 1190 of the contested decision, consisting of taking into account the overall turnover deriving from the sale of freight services, is appropriate for the purposes of contributing to the attainment of the first objective referred to in point 6 of the 2006 Guidelines, which is to reflect adequately the economic importance of the single and continuous infringement. Moreover, the applicant has not demonstrated that that approach was inappropriate for the purposes of contributing to the attainment of the second objective referred to in that point, which is to reflect adequately the relative weight of each of the incriminated carriers.
540 Nor can the applicant claim that the Commission penalised it as if the cartel at issue had also concerned rates. In fact, in accordance with the general methodology laid down by the 2006 Guidelines, the nature of the infringement is taken into account at a later stage, in the determination of the degree of gravity, which, pursuant to point 20 of those guidelines, is to be assessed on a case-by-case basis for all types of infringements, taking account of all the relevant circumstances of the case (judgment of 29 February 2016, Schenker v Commission, T‑265/12, EU:T:2016:111, paragraphs 296 and 297).
541 Lastly, as regards the arguments based on previous Commission decisions, it is sufficient to recall that the Commission’s previous decision-making practice does not in itself serve as a legal framework for competition fines, since that framework is set out solely in Regulation No 1/2003 and in the 2006 Guidelines (see judgment of 9 September 2011, Alliance One International v Commission, T‑25/06, EU:T:2011:442, paragraph 242 and the case-law cited), and that it has not, in any event, been demonstrated that the facts of the cases which gave rise to those decisions, such as the markets, goods, countries, undertakings and periods concerned, were comparable to those of the present case (see, to that effect, judgment of 29 June 2012, E.ON Ruhrgas and E.ON v Commission, T‑360/09, EU:T:2012:332, paragraphs 261 and 262 and the case-law cited).
542 The Commission therefore did not infringe the principle of proportionality when it concluded, in recital 1190 of the contested decision, that the entire amount of sales linked to the freight services should be taken into account, without it being necessary to split it into its constituent elements.
(iii) The complaint alleging a breach of the principle of equal treatment
543 It is sufficient to observe that the applicant has in no way explained how taking account of the full price of freight services would have led the Commission to treat differently the incriminated carriers which were in a comparable situation or to treat in the same way the incriminated carriers which were in a different situation.
544 It follows that the present complaint must be rejected, as must the arguments relating to the taking into account of the full price of freight services in their entirety.
(2) The arguments relating to the taking into account of the turnover generated on inbound routes
545 The applicant submits, in essence, that the Commission applied a criterion that was free from any ‘competitive relevance’, relating to the place of supply, in order to include in the value of sales the turnover generated on inbound routes. According to the applicant, the Commission should have relied on the place of establishment of the customer, or indeed on the place of invoicing, which would have resulted in that turnover being excluded from the value of sales.
546 The applicant also claims that the Commission ought to have excluded from the value of sales the turnover generated on inbound routes rather than granting the incriminated carriers the general 50% reduction. The latter is arbitrary, does not enable the basic amount of the fine to be adjusted correctly, has a manifestly unfair impact on the applicant as a carrier established outside the European Union and unduly favours certain European carriers.
547 The applicant adds that, in so far as the Commission does not have jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes, it should have excluded from the value of sales the turnover generated on inbound routes.
548 The Commission disputes the applicant’s line of argument.
549 In that regard, it should be borne in mind that point 13 of the 2006 Guidelines makes the inclusion in the value of sales of turnover from the goods or services of the undertaking concerned subject to the condition that the sales at issue ‘… to which the infringement directly or indirectly relates [were made] in the relevant geographic area within the EEA’.
550 Point 13 of the 2006 Guidelines does not thus refer to ‘sales negotiated’ or ‘sales invoiced’ within the EEA, but refers only to ‘sales’ in the EEA. It follows that, contrary to what the applicant maintains, that point does not preclude the Commission from using sales to customers established outside the EEA, or require account to be taken of sales negotiated or invoiced in the EEA. Otherwise, an undertaking participating in an infringement would merely have to ensure that it negotiates its sales with subsidiaries of its customers located outside the EEA or invoices them to those subsidiaries in order to ensure that those sales would not be taken into account in the calculation of a potential fine, which would therefore be much smaller (see, to that effect, judgment of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission, C‑615/15 P, not published, EU:C:2017:190, paragraph 55).
551 Contrary to what the applicant maintains, the Commission is also not obliged, for the purposes of the application of point 13 of the 2006 Guidelines, to opt for the criteria which may have been considered relevant to merger control, in particular those identified in the Consolidated Jurisdictional Notice. The purpose of that notice is to provide guidance on jurisdictional issues that arise in the context of merger control. It is therefore not binding on the Commission as to the method to be adopted for the calculation of fines in cartel cases, which is based on its own purposes (judgment of 29 February 2016, Kühne + Nagel International and Others v Commission, T‑254/12, not published, EU:T:2016:113, paragraph 252; see also, to that effect, judgment of 9 September 2015, Samsung SDI and Others v Commission, T‑84/13, not published, EU:T:2015:611, paragraph 206).
552 As regards the interpretation of the concept of ‘sales … within the EEA’ which the applicant seeks to draw, in particular, from the Commission’s decision in Case COMP/39.406 – Marine hoses, it is sufficient to note that the Commission’s practice in earlier decisions does not itself serve as a legal framework for fines imposed in competition matters, since that framework is defined solely in Regulation No 1/2003 and the 2006 Guidelines and that it has not, in any event, been demonstrated that the facts of the case which gave rise to that decision were comparable to those of the present case.
553 That concept must be interpreted in the light of the objective of point 13 of the 2006 Guidelines. That objective is, as is apparent from paragraphs 519 and 531 to 533 above, to adopt as the starting point for the calculation of fines an amount which reflects, inter alia, the economic significance of the infringement on the relevant market, while the turnover achieved on the goods or services in respect of which the infringement was committed constitutes an objective criterion giving a proper measure of the harm which that infringement does to normal competition (see judgment of 28 June 2016, Portugal Telecom v Commission, T‑208/13, EU:T:2016:368, paragraph 236 and the case-law cited).
554 It is thus for the Commission, for the purposes of determining whether sales were made ‘within the EEA’, within the meaning of point 13 of the 2006 Guidelines, to opt for a criterion which reflects the reality of the market, that is to say, which is the best for ascertaining the effects of the cartel on competition in the EEA.
555 In recitals 1186 and 1197 of the contested decision, the Commission stated that, in calculating the value of sales, it had taken into account the turnover from the sale of freight services on intra-EEA routes, EU-third country routes, EU‑Switzerland routes and non-EU EEA‑third country routes. As is apparent from recital 1194 of that decision, the sales related to EU-third country routes and non-EU EEA‑third country routes included both sales of freight services on outbound routes and sales of inbound freight services.
556 In that recital, in order to justify the inclusion of turnover from the sale of those services in the value of sales, the Commission referred to the need to take account of their ‘specificities’. It thus observed, inter alia, that the single and continuous infringement related to those services and that the ‘anti-competitive arrangements [were] likely to have a negative impact on the internal market in respect of both [of them]’.
557 As is apparent from paragraphs 96 to 170 above and contrary to what the applicant maintains, it was foreseeable that the single and continuous infringement, including in so far as it related to inbound routes, would produce substantial and immediate effects in the internal market or within the EEA and was thus liable to harm normal competition within the EEA. In recitals 1194 and 1241 of the contested decision, the Commission nevertheless acknowledged that part of the ‘harm’ resulting from the conduct at issue in respect of EEA‑third country routes was likely to fall outside the EEA. It also stated that some of those services were provided outside the EEA. Consequently, it relied on point 37 of the 2006 Guidelines and granted the incriminated carriers a 50% reduction in the basic amount of the fine in respect of EEA‑third country routes.
558 Contrary to the applicant’s submission, that reduction is not vitiated by illegality. As is apparent from recital 1241 and footnote 1536 of the contested decision, the Commission applied that reduction under point 37 of the 2006 Guidelines, which empowers it to depart from the general methodology set out in those guidelines where this is justified by the particularities of a given case or the need to achieve deterrence in a particular case.
559 The reasons why the Commission decided to depart in this way from the general methodology set out in the 2006 Guidelines, which it had followed during the previous stages of the calculation of the basic amount of the fine, are set out in recitals 1194 and 1241 of the contested decision. Two objective criteria are involved, the validity of which, moreover, was not usefully disputed by the applicant, namely, first, the places where freight services were physically provided on EEA‑third country routes and, second, the places where the harm resulting from the single and continuous infringement occurred in so far as it concerned those routes.
560 In those circumstances, the Commission was entitled to make an exceptional adjustment to the basic amount by considering that the two criteria used justified a reduction such as that which was granted. The argument that the general 50% reduction was arbitrary cannot therefore be accepted.
561 The applicant’s argument that it achieved a higher turnover on inbound routes than on outbound routes is irrelevant in that regard. First, that argument, which relates exclusively to the applicant’s individual situation, is not capable of demonstrating that the two criteria set out in recitals 1194 and 1241 of the contested decision, which relate more generally to inbound and outbound freight services and to the harm caused by the single and continuous infringement in connection with those services, are incorrect. Second, and in any event, that argument presupposes that the general 50% reduction is based on the premiss that the relevant turnover was also divided between inbound and outbound routes, which is not apparent from the contested decision.
562 In so far as the applicant submits that the Commission should nevertheless have adjusted the percentage of that reduction in accordance with the distribution of the turnover of each of the incriminated carriers, it should be borne in mind that, when the amount of the fine is determined, there cannot, by the application of different methods of calculation, be any discrimination between the undertakings which have participated in an agreement or a concerted practice contrary to Article 101(1) TFEU (see, by analogy, judgment of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 58 and the case-law cited).
563 Applying a differentiated calculation method to the incriminated carriers according to the distribution of their turnover between inbound and outbound routes would in fact amount to favouring some of them on the basis of a criterion which is irrelevant in view of the gravity and duration of the infringement (see, by analogy, judgment of 7 September 2016, Pilkington Group and Others v Commission, C‑101/15 P, EU:C:2016:631, paragraph 66 and the case-law cited).
564 Furthermore, in so far as the applicant relies on unequal treatment in relation to the incriminated carriers which had a higher turnover on outbound routes than on inbound routes, it must be borne in mind that it is for the applicant to identify precisely the comparable situations which it considers to have been treated differently or the different situations which it considers to have been treated identically (see, to that effect, judgment of 12 April 2013, Du Pont de Nemours (France) and Others v Commission, T‑31/07, not published, EU:T:2013:167, paragraph 311).
565 In the present case, the applicant has failed to identify such situations, merely referring without further explanation to ‘some European carriers’ and to ‘carriers that achieve the majority of their sales in respect of outbound routes’.
566 It follows that the Commission was entitled to use 50% of the turnover on EEA‑third country routes as an objective criterion giving a proper measure of the harm which the applicant’s participation in the cartel at issue did to normal competition, provided that it resulted from sales having a link with the EEA (see, to that effect, judgment of 27 February 2014, InnoLux v Commission, T‑91/11, EU:T:2014:92, paragraph 47).
567 Such a link exists in the present case as regards inbound routes, since, as is apparent from recitals 1194 and 1241 of the contested decision and as the Commission maintains in its written pleadings, inbound freight services are provided in part within the EEA. As stated in paragraph 130 above, those services are intended precisely to enable the transport of goods from third countries to the EEA. As the Commission rightly points out, part of their ‘physical’ service is by definition carried out in the EEA, where part of the transport of those goods takes place and where the cargo plane lands.
568 In those circumstances, the Commission was entitled to find that sales of inbound freight services had been made within the EEA within the meaning of point 13 of the 2006 Guidelines.
569 The present complaint must therefore be rejected and it must be concluded that the Commission did not commit any error in including in the value of sales 50% of the turnover from the sale of inbound freight services.
570 As regards the alleged breach of the principle of proportionality, it should be noted that, as is apparent from paragraph 566 above, to exclude from the value of sales the entire turnover from the sale of inbound freight services would prevent the Commission from imposing on the applicant a fine which is a fair measure of the harmfulness of its participation in the cartel at issue to normal competition. The applicant has, moreover, failed to explain why the inclusion in the value of sales of 50% of the turnover from the sale of inbound freight services was unsuitable for the legitimate objectives pursued, consisting of adequately reflecting the economic importance of the single and continuous infringement and the relative weight of each of the incriminated carriers, or exceeded what was appropriate and necessary to achieve them.
571 It follows that the arguments relating to the taking into account of the turnover generated on inbound routes must be rejected, as must the present part of the plea in its entirety.
(b) The second part, concerning the determination of the gravity factor
572 The applicant submits that, as regards the determination of the gravity factor, the Commission infringed the 2006 Guidelines and breached the principles of proportionality and equal treatment by failing, first, to take account of the fact that it was not aware of the overall single and continuous infringement, second, to take into account the particularly limited impact of the conduct at issue on the EEA market and, third, to apply a different gravity factor according to the relative gravity of the participation of the various incriminated carriers, in particular the ‘core group’ and the other incriminated carriers.
573 The Commission disputes the applicant’s line of argument.
574 Under Article 23(3) of Regulation No 1/2003, in fixing the amount of the fine, regard is to be had inter alia to the gravity of the infringement.
575 Points 19 to 23 of the 2006 Guidelines provide as follows:
‘19. The basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement.
20. The assessment of gravity will be made on a case-by-case basis for all types of infringement, taking account of all the relevant circumstances of the case.
21. As a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales.
22. In order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of that scale, the Commission will have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented.
23. Horizontal price-fixing, market-sharing and output-limitation agreements, which are usually secret, are, by their very nature, among the most harmful restrictions of competition. As a matter of policy, they will be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale.’
576 According to the case-law, a horizontal agreement by which the undertakings concerned agree not on the total price but on one element thereof constitutes a horizontal price-fixing agreement within the meaning of point 23 of the 2006 Guidelines and is therefore among the most harmful restrictions of competition (see, to that effect, judgment of 29 February 2016, UTi Worldwide and Others v Commission, T‑264/12, not published, EU:T:2016:112, paragraphs 277 and 278).
577 It follows that, as the Commission pointed out in recital 1208 of the contested decision, such an agreement generally merits a gravity factor at the higher end of the scale of 0 to 30% referred to in point 21 of the 2006 Guidelines.
578 According to the case-law, a gravity factor which is significantly lower than the upper limit of that scale, is highly favourable to an undertaking which is party to such an agreement (see, to that effect, judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 125) and may even be warranted in view of the very nature of the infringement (see judgment of 26 September 2018, Philips and Philips France v Commission, C‑98/17 P, not published, EU:C:2018:774, paragraph 103 and the case-law cited).
579 In recital 1199 of the contested decision, the Commission specifically considered that the ‘agreements and/or concerted practices to which [the contested decision] relates concerned the fixing of various elements of the price’.
580 The Commission was thus entitled, in recitals 1199, 1200 and 1208 of the contested decision, to characterise the conduct at issue as a horizontal price-fixing agreement or practice, even though it ‘did not cover the entire price for the services in question’.
581 The Commission was therefore entitled to conclude, in recital 1208 of the contested decision, that the agreements and practices at issue were among the most harmful restrictions of competition and, accordingly, merited a gravity factor ‘at the higher end of the scale’.
582 The gravity factor of 16% which the Commission adopted in recital 1212 of the contested decision, which was significantly lower than the upper limit of the scale referred to in point 21 of the 2006 Guidelines might therefore be warranted in view of the very nature of the single and continuous infringement.
583 However, it must be observed that, as is apparent from recitals 1209 to 1212 of the contested decision, the Commission did not rely solely on the nature of the single and continuous infringement in order to set the gravity factor at 16%. The Commission thus referred in that decision to the combined market shares of the incriminated carriers worldwide and on intra-EEA and EEA‑third country routes (recital 1209), to the geographic scope of the cartel at issue (recital 1210) and to the implementation of the agreements and practices at issue (recital 1211).
584 However, the applicant does not dispute, in the context of this part of the plea, the merits of those factors for the purposes of setting the gravity factor.
585 In those circumstances, the applicant cannot claim that the gravity factor of 16% was unlawful.
586 None of the applicant’s arguments is capable of calling that conclusion into question.
587 In the first place, as regards the allegedly limited effect of the single and continuous infringement on the EEA market, it must be recalled that the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3) provided that, in assessing the infringement’s gravity, account had to be taken, inter alia, of its actual impact on the market, where this could be measured.
588 However, that requirement no longer appears in the 2006 Guidelines which are applicable in the present case. Those guidelines do not therefore require the Commission to take into consideration the actual impact of the infringement on the market in order to determine the percentage of the value of sales used for gravity in accordance with points 19 to 24 of those guidelines (see, to that effect, judgment of 16 June 2015, FSL and Others v Commission, T‑655/11, EU:T:2015:383, paragraph 539).
589 Nor does the case-law require it to do so, at least with regard to a restriction of competition ‘by object’.
590 As was indicated in paragraph 530 above, the gravity of an infringement of the competition rules must be assessed in the light of numerous factors. Those include, inter alia, the particular circumstances of the case, its context and the dissuasive effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (order of 25 March 1996, SPO and Others v Commission, C‑137/95 P, EU:C:1996:130, paragraph 54, and judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 241).
591 The effects on the market may indeed be taken into account amongst those factors, but they are crucial only when one is dealing with agreements, decisions or concerted practices which do not directly have as their object the prevention, restriction or distortion of competition and which are not therefore liable to fall within the scope of application of Article 101 TFEU except as a result of their actual effects (judgment of 12 December 2018, Servier and Others v Commission, T‑691/14, under appeal, EU:T:2018:922, paragraph 1809).
592 Otherwise, the Commission would, at the stage of calculating the amount of the fine, be placed under an obligation to which, according to settled case-law, it is not subject for the purposes of applying Article 101 TFEU where the infringement in question has an anticompetitive object (see judgment of 3 September 2009, Prym and Prym Consumer v Commission, C‑534/07 P, EU:C:2009:505, paragraph 64 and the case-law cited).
593 In recital 903 of the contested decision, the Commission classified the conduct at issue as a restriction of competition by object. It was therefore not required to take into consideration the actual impact of the single and continuous infringement on the market.
594 The fact remains that, if the Commission considers it appropriate, for the purposes of calculating the amount of the fine, to take account of the actual impact of the infringement on the market, it cannot just rely on a mere presumption but must provide specific, credible and adequate evidence with which to assess what actual influence the infringement may have had on competition in that market (judgment of 3 September 2009, Prym and Prym Consumer v Commission, C‑534/07 P, EU:C:2009:505, paragraph 82).
595 Similarly, although the Commission is not required, for the purpose of setting fines, to establish that the infringement in question conferred unlawful gains on the undertakings concerned, or to take into consideration, where appropriate, the absence of such gains, the assessment of the unlawful gains from the infringement may be relevant if the Commission bases itself precisely on such gains for the purpose of setting the gravity factor (see, to that effect, judgment of 15 March 2000, Cimenteries CBR and Others v Commission, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, EU:T:2000:77, paragraphs 4881 and 4882).
596 In recital 1199 of the contested decision, when setting the gravity factor, the Commission found that the agreements and practices at issue had ‘operated to the benefit of the [incriminated carriers] and to the detriment of their customers and ultimately the general public’. However, it has not adduced any evidence to support that finding.
597 It should be observed, however, that the finding at issue is not an independent ground on which the Commission relied in assessing the gravity of the single and continuous infringement, but one of a number of considerations which it took into account for the purposes of assessing the nature of that infringement in recitals 1199 to 1208 of the contested decision. That consideration does not constitute the necessary basis for the conclusion that that infringement sought to set elements of the price of the freight services and was, therefore, capable of justifying a gravity factor at the lower limit of the higher end of the scale referred to in point 23 of the 2006 Guidelines for the most harmful restrictions of competition. Accordingly, the present argument is not such as to call into question the assessment of the nature of the infringement in question set out in the contested decision. Consequently, as the applicant has not shown that the gravity factor was not justified in the light of the other factors taken into account in that decision (see paragraphs 583 and 584 above), that argument must be rejected.
598 In the second place, as regards the allegedly limited nature of the applicant’s participation in the single and continuous infringement, it should be borne in mind that the factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the profit which they were able to derive from the cartel, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union (see judgment of 26 January 2017, Roca Sanitario v Commission, C‑636/13 P, EU:C:2017:56, paragraph 49 and the case-law cited).
599 It should be borne in mind, however, that the taking into account of any differences between the conduct of the various undertakings that have participated in a single infringement need not necessarily occur when the gravity factor is set but may occur at another stage in the setting of the fine, such as when the basic amount of the fine is adjusted in the light of mitigating and aggravating circumstances under points 28 and 29 of the 2006 Guidelines (see, to that effect, judgment of 26 January 2017, Roca v Commission, C‑638/13 P, EU:C:2017:53, paragraph 67 and the case-law cited).
600 In the context of determining the gravity factor, in recital 1208 of the contested decision, the Commission stated that it would assess the ‘fact that certain carriers may have played a minor or passive role … as a mitigating circumstance’. Thus it found, in recitals 1258 and 1259 of that decision, that the participation of some of the incriminated carriers in the single and continuous infringement was limited in nature and, consequently, granted them a 10% reduction in the basic amount of the fine on account of mitigating circumstances. The applicant was not among those carriers.
601 It follows that the Commission did not err in not taking into account the allegedly limited extent of the applicant’s involvement in the single and continuous infringement also at the stage of setting the gravity factor.
602 As regards the alleged breach of the principle of equal treatment, it is sufficient to observe that the applicant has in no way explained how the taking into account of the degree of its participation in the single and continuous infringement as a mitigating circumstance rather than under the gravity factor might have led the Commission to treat the incriminated carriers which were in a situation comparable to its own differently or to treat in the same way the incriminated carriers which were in a situation different from its own.
603 The present part of the plea can therefore only be rejected.
(c) The third part, concerning the mitigating circumstances to be taken into consideration
604 The applicant claims that the Commission made a number of errors as regards the mitigating circumstances to be taken into consideration. It relies in support of its arguments on two complaints, relating, first, to the insufficiency of the general 15% reduction and, second, in essence, to the limited nature of its participation in the single and continuous infringement.
(1) The first complaint, relating to the inadequacy of the general 15% reduction
605 The applicant submits that, even if the Court were to reject the argument that the carriers were required to submit collective applications for approval of tariffs in Hong Kong, it should be held that the local regulatory regime constituted, at the very least, a very significant incentive to engage in anticompetitive conduct. Referring to the 2006 Guidelines, it maintains that, as an undertaking established in Hong Kong, and having a role in the procedure for approving surcharges, it had no reason to believe that its conduct was capable of infringing Article 101 TFEU. It considers that those considerations also apply to its conduct in other third countries where surcharges were regulated. In the light of those arguments, and of the fact that the Commission granted reductions of 40% or 60% in earlier decisions on account of the existence of a regulatory framework, a 15% reduction is inadequate.
606 The Commission disputes this line of argument.
607 In that regard, it should be borne in mind that point 27 of the 2006 Guidelines provides that, in setting the fine, the Commission may take into account circumstances that result in an increase or decrease in the basic amount on the basis of an overall assessment which takes account of all the relevant circumstances.
608 Point 29 of the 2006 Guidelines provides that the basic amount of the fine may be reduced where the Commission finds that mitigating circumstances exist. That point contains an indicative and non-exhaustive list of five types of mitigating circumstances that may be taken into account, including the authorisation or encouragement of the anticompetitive behaviour in question by public authorities or by legislation.
609 In recital 1263 of the contested decision, the Commission found that none of the regulatory regimes had required the incriminated carriers to discuss tariffs. However, it stated, in recitals 1264 and 1265 of that decision, that some of the regulatory regimes might have encouraged the incriminated carriers to pursue anticompetitive conduct and, therefore, granted them a general 15% reduction, in accordance with point 29 of the 2006 Guidelines.
610 The applicant’s line of argument is not capable of calling those conclusions into question.
611 As a preliminary point, it should be recalled that the applicant’s argument seeking to establish that the carriers were under an obligation to lodge collective applications for approval of surcharges in Hong Kong was rejected in paragraphs 416 to 451 above.
612 As regards the applicant’s argument that the 15% reduction was insufficient, in the first place, it should be recalled that, in accordance with the case-law cited in paragraph 114 above, the fact that an undertaking participating in an agreement or 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 territory of the internal market or within the EEA. Consequently, even assuming that the applicant may have had a special role in the Hong Kong approval procedure, its argument that it could not have foreseen that its conduct was capable of infringing the abovementioned provisions because it is established in Hong Kong cannot succeed. Nor could the applicant have been unaware that its conduct in other third countries was capable of falling within the scope of Article 101 TFEU and Article 53 of the EEA Agreement.
613 In the second place, as regards the arguments based on previous Commission decisions, it is sufficient to point out that the mere fact that the Commission has in its previous decisions granted a certain rate of reduction for specific conduct does not imply that it is required to grant the same proportionate reduction when assessing similar conduct in a subsequent administrative procedure (see judgment of 6 May 2009, KME Germany and Others v Commission, T‑127/04, EU:T:2009:142, paragraph 140, and the case-law cited). The applicant cannot, therefore, rely on the reduction of fines granted in those other cases.
614 It follows from all the foregoing that the complaint relating to the inadequacy of the general 15% reduction must be rejected.
(2) The second complaint, relating to the limited nature of the applicant’s participation in the single and continuous infringement
615 The applicant submits that it is manifestly unfair to have refused to consider that it operated on the periphery of the cartel at issue, in similar fashion to Air Canada, Lan Cargo and SAS, and to have consequently deprived it of the 10% reduction in the basic amount which was granted to those companies. First, it submits that it did not form part of the ‘core group’ of incriminated carriers. Second, it states that its conduct in Hong Kong and other regulated territories outside the EEA was disproportionate to the essentially European activities of the ‘core group’ of those carriers. Third, it submits that its conduct in those territories should, in any event, have been regarded as lawful. Fourth, it argues that the evidence against it is limited.
616 The Commission disputes the applicant’s line of argument.
617 According to the case-law, an undertaking whose liability is established in relation to several branches of a cartel contributes more to the effectiveness and the seriousness of the cartel than an offender involved in only one branch of it. Thus, the first undertaking commits a more serious infringement than the second (see judgment of 15 July 2015, Trafilerie Meridionali v Commission, T‑422/10, EU:T:2015:512, paragraph 103 and the case-law cited).
618 In recitals 1258 and 1259 of the contested decision, the Commission found that Latam, Air Canada, and SAS had had a limited participation in the single and continuous infringement in so far as they had operated on the periphery of the cartel at issue, had entered into a limited number of contacts with other carriers, and they had not participated in all elements of the infringement. Therefore, it granted them a 10% reduction in the basic amount of the fine. By contrast, as indicated in paragraph 600 above, the Commission did not find that there were grounds for concluding that the applicant participated to a limited extent in the single and continuous infringement and consequently did not grant it a reduction of the basic amount of the fine on that account.
619 As is apparent from recitals 881 to 883 of the contested decision, the reference to Air Canada, Lan Cargo and SAS’ not having participated in ‘all elements of the [single and continuous] infringement’ must be understood as meaning that those carriers did not participate directly in all three of its elements, but had the requisite knowledge of them.
620 Conversely, the applicant participated directly in the three elements of the single and continuous infringement. Its situation is therefore not comparable to that of Air Canada, Lan Cargo and SAS.
621 The applicant is therefore not justified in relying on any similarity between its situation and that of Air Canada, Lan Cargo and SAS.
622 Nor is the applicant justified in claiming that its participation in the single and continuous infringement was limited.
623 First, as regards the argument that the applicant did not belong to a ‘core group’ of carriers, it must be observed that the Commission did not establish the existence of that core group or define its scope (see paragraphs 280 and 281 above).
624 Second, as regards the differences between the applicant’s conduct and that of an alleged ‘core group’, it should be recalled that it is for the applicant to put forward the circumstances capable of showing that the mitigating circumstance sought in this case should be allowed (see, to that effect, judgment of 30 November 2011, Quinn Barlo and Others v Commission, T‑208/06, EU:T:2011:701, paragraphs 231 and 239).
625 In the present case, the applicant has failed not only to establish the existence of an alleged ‘core group’ of carriers or to define its scope, but also to identify and substantiate the differences in conduct on which it relies.
626 Third, the applicant is wrong to claim that its conduct in Hong Kong and other regulated territories outside the EEA should have been regarded as lawful, as is apparent from the examination of the fifth plea in law (see paragraphs 378 to 511 above).
627 Fourth, it is not apparent from recitals 757 to 759 of the contested decision, in which the Commission described all the contacts which it held against the applicant, that the evidence relied on against it was limited. On the contrary, it is apparent from those recitals that the applicant maintained numerous bilateral and multilateral contacts with other carriers both within the EEA and in third countries.
628 The present complaint must therefore be rejected, as must the present part of the plea in its entirety.
629 Therefore, since the three parts of the present plea have been rejected, the plea must be rejected in its entirety.
630 In the light of all the foregoing considerations, the second plea in law must be upheld. Consequently, Article 1(1)(g) and (4)(g) of the contested decision must be annulled.
631 By contrast, it cannot be held that that illegality is such as to entail the annulment of the contested decision in its entirety. Although the Commission infringed the rules on limitation by penalising the applicant for the single and continuous infringement as regards intra-EEA and EU‑Switzerland routes, it must be held that the applicant has not demonstrated, in the present action, that the Commission erred in finding that it had participated in that infringement.
632 The other heads of claim seeking annulment must be dismissed.
B. The claim for alteration of the amount of the fine imposed on the applicant
633 In the alternative, the applicant requests the Court to exercise its unlimited jurisdiction to reduce the fine imposed on it to a symbolic amount or to grant it a greater reduction than that granted in the contested decision, should it find that there is no need to annul the contested decision in so far as it concerns the applicant.
634 As a preliminary point, it should be noted that the applicant has failed to identify expressly the complaints on which it intends to rely in support of this claim. However, in the introductory paragraph of the seventh plea, it stated that it was seeking ‘[in] the alternative’ a reduction in the amount of the fine imposed on it. It follows that the applicant relies, in support of this claim, on arguments which are essentially identical to those on which it relied in support of the seventh plea in its claim for annulment. In addition to those arguments, there is a further argument which it puts forward in its replies to the measures of organisation of procedure of the Court and which concerns sales on non-EU EEA-Switzerland routes.
635 The first two arguments relate to the calculation of the value of sales:
– by its first argument, the applicant submits that only the value of the surcharges should be taken into account and not the total price of the freight services;
– by its second argument, the applicant submits that its turnover from inbound freight services cannot be included in the value of sales.
636 The third to fifth arguments relied on by the applicant in support of this claim concern the gravity factor:
– by its third argument, the applicant submits that account should be taken of the fact that the applicant was not aware of the overall single and continuous infringement;
– by its fourth argument, the applicant submits that account should be taken of the particularly limited impact of the conduct at issue on the EEA market;
– by its fifth argument, the applicant submits that account should be taken of the varying degrees of involvement of the incriminated carriers in the single and continuous infringement.
637 The sixth and seventh arguments relied on by the applicant in support of this claim concern mitigating circumstances. The applicant thus submits that the regulatory regime in Hong Kong was of such a nature as to justify, for its benefit, a reduction in the amount of the fine in excess of the general 15% reduction granted by the Commission in the contested decision. It also maintains that it operated on the periphery of the cartel at issue, as did Air Canada, Lan Cargo and SAS, which justifies its benefiting, like those companies, from a reduction in the amount of the fine on account of its limited participation in the single and continuous infringement.
638 Lastly, by its eight argument, relied on in the reply to the measures of organisation of procedure of the Court, the applicant submitted that a reduction in the amount of the fine would be warranted should the Court uphold the plea raised of its own motion.
639 The Commission contends that the applicant’s arguments should be rejected and requests that the benefit of the general 50% reduction and the general 15% reduction be withdrawn from the applicant, should the Court find that the turnover from the sale of inbound freight services could not be included in the value of sales.
640 In EU competition law, the review of legality is supplemented by the unlimited jurisdiction which the Courts of the European Union are afforded by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. That jurisdiction empowers the Courts of the European Union, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the amount of the fine or penalty payment imposed (see judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 63 and the case-law cited).
641 That exercise involves, in accordance with Article 23(3) of Regulation No 1/2003, taking into consideration, with respect to each undertaking sanctioned, the seriousness and duration of the infringement at issue, in compliance with the principles of, inter alia, adequate reasoning, proportionality, the individualisation of penalties and equal treatment, and without the Courts of the European Union being bound by the indicative rules defined by the Commission in its guidelines (see, to that effect, judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 90). It must, however, be pointed out that the exercise of unlimited jurisdiction provided for in Article 261 TFEU and Article 31 of Regulation No 1/2003 does not amount to a review of the Court’s own motion, and that proceedings before the Courts of the European Union are inter partes. With the exception of pleas involving matters of public policy which the Courts are required to raise of their own motion, it is therefore for the applicant to raise pleas in law against the decision at issue and to adduce evidence in support of those pleas (judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 64).
642 It is thus for the applicant to identify the impugned elements of the contested decision, to formulate grounds of challenge in that regard and to adduce evidence – direct or circumstantial – to demonstrate that its objections are well founded (judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 65).
643 In order to satisfy the requirements of Article 47 of the Charter when conducting a review in the exercise of their unlimited jurisdiction with regard to the fine, the Courts of the European Union are, for their part, bound, in the exercise of the powers conferred by Articles 261 and 263 TFEU, to examine all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement (see judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 75 and the case-law cited; judgment of 26 January 2017, Villeroy & Boch Austria v Commission, C‑626/13 P, EU:C:2017:54, paragraph 82).
644 Lastly, in order to determine the amount of the fine, it is for the Courts of the European Union to assess for themselves the circumstances of the case and the nature of the infringement in question (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 89) and to take into account all of the factual circumstances (see, to that effect, judgment of 3 September 2009, Prym and Prym Consumer v Commission, C‑534/07 P, EU:C:2009:505, paragraph 86), including, where appropriate, additional information which is not mentioned in the Commission decision imposing the fine (see, to that effect, judgments of 16 November 2000, Stora Kopparbergs Bergslags v Commission, C‑286/98 P, EU:C:2000:630, paragraph 57, and of 12 July 2011, Fuji Electric v Commission, T‑132/07, EU:T:2011:344, paragraph 209).
645 In the present case, it is for the Court, in the exercise of its unlimited jurisdiction, to determine, in the light of the arguments put forward by the parties in support of this claim, the amount of the fine which it considers most appropriate, having regard in particular to the findings made when examining the pleas raised in support of the claim for annulment and the plea raised of the Court’s own motion, and taking into account all the relevant factual circumstances.
646 The Court considers that it is not appropriate, in order to determine the amount of the fine to be imposed on the applicant, to depart from the method of calculation followed by the Commission in the contested decision, which it has not previously determined to be vitiated by illegality, as follows from the examination of the seventh plea in law above. Although it is for the Court, in the exercise of its unlimited jurisdiction, to assess for itself the circumstances of the case and the nature of the infringement in question in order to determine the amount of the fine, the exercise of unlimited jurisdiction cannot result, when the amount of the fines to be imposed is determined, in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 101(1) TFEU, Article 53 of the EEA Agreement and Article 8 of the EC‑Switzerland Air Transport Agreement. Accordingly, the guidance which can be drawn from the Guidelines is, as a general rule, capable of guiding the Courts of the European Union in their exercise of that jurisdiction where the Commission has applied those guidelines for the purposes of calculating the fines imposed on the other undertakings penalised by the decision which those Courts are asked to examine (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 80 and the case-law cited).
647 In those circumstances, first of all, it should be noted that the applicant’s total value of sales in 2005 was EUR 386 091 120. That value does not include any revenue from non-EU EEA-Switzerland routes, in respect of which the Court held in paragraphs 192 to 217 above that they did not fall within the scope of the single and continuous infringement. It follows from the applicant’s replies to the measures of organisation of procedure of the Court that it did not achieve any turnover on those routes during 2005.
648 Nor does the value of sales taken into account in the contested decision include revenue on intra-EEA and EU‑Switzerland routes, in respect of which the Court held in paragraphs 218 to 247 above that the applicant could not be held liable for the single and continuous infringement. The applicant did not achieve any turnover on those routes during the relevant period.
649 Moreover, it should be observed that the first argument, which, in essence, concerns including the full price of freight services in the value of sales, refers to the first set of arguments in the first part of the seventh plea raised in support of the claim for annulment. The Court rejected that set of arguments in paragraphs 515 to 544 above and there is nothing in the applicant’s line of argument raised in support of it to show that the inclusion in the value of sales of the full price of freight services was such as to lead to the use of an inappropriate value of sales. On the contrary, excluding the price elements of freight services other than surcharges from the value of sales would have the effect of artificially minimising the economic importance of the single and continuous infringement.
650 As regards the applicant’s second argument which relates to the inclusion of turnover from the sale of inbound freight services in the value of sales, it should be noted that it relates to the second set of arguments in the first part of the seventh plea raised in support of the claim for annulment. The Court examined and rejected that set of arguments in paragraphs 545 to 571 above and there is nothing in the applicant’s line of argument raised in support of it to show that the inclusion in the value of sales of turnover from the sale of inbound freight services was such as to lead to the use of an inappropriate value of sales. On the contrary, as is apparent from paragraph 566 above, excluding from the value of sales turnover from the sale of inbound freight services would preclude the imposition on the applicant of a fine which is a fair measure of the harmfulness of its participation in the cartel at issue to normal competition (see, to that effect, judgment of 28 June 2016, Portugal Telecom v Commission, T‑208/13, EU:T:2016:368, paragraph 236).
651 Next, it should be noted that, for the reasons set out in recitals 1198 to 1212 of the contested decision, the single and continuous infringement merits a gravity factor of 16%.
652 The third to fifth arguments do not demonstrate the contrary. Those arguments refer, in fact, to the second part of the seventh plea in law which the applicant raised in support of its claim for annulment. The Court examined and rejected that part in paragraphs 572 to 603 above and there is no reason to consider that those arguments justify a gravity factor lower than 16%.
653 As regards, in particular, the allegedly limited impact of the conduct at issue on the EEA market, referred to in the fourth argument, it should be added that the amount of a fine cannot be regarded as inappropriate solely because it does not reflect the economic harm which has been or which may have been caused by the alleged infringement (judgment of 29 February 2016, Schenker v Commission, T‑265/12, EU:T:2016:111, paragraph 287). This argument does not therefore justify a reduction of the gravity factor.
654 As regards the additional amount, it must be borne in mind that, according to point 25 of the 2006 Guidelines, irrespective of the duration of an undertaking’s participation in the infringement, the Commission includes in the basic amount a sum of between 15 and 25% of the value of sales, in order to deter undertakings from even entering into horizontal price-fixing, market-sharing and output-limitation agreements. That point states that, for the purpose of deciding the proportion of the value of sales to be considered in a given case, the Commission will have regard to a number of factors, in particular those referred in point 22 of the 2006 Guidelines. Those factors are the same which the Commission takes into account for the purpose of setting the gravity factor and include the nature of the infringement, the combined market share of all the parties concerned, the geographic scope of the infringement and whether or not the infringement has been implemented.
655 The Courts of the European Union have inferred from this that, even if the Commission does not set out a specific statement of reasons as regards the proportion of the value of sales used as the additional amount, the mere reference to the analysis of the factors used in order to assess the gravity of the infringement suffices in that respect (judgment of 15 July 2015, SLM and Ori Martin v Commission, T‑389/10 and T‑419/10, EU:T:2015:513, paragraph 264).
656 In recital 1219 of the contested decision, the Commission found that the ‘percentage to be applied for the additional amount should be 16%’ given the ‘specific circumstances of the case’ and the criteria used to determine the gravity factor.
657 It follows that, for the same reasons as those set out in recitals 1198 to 1212 of the contested decision, the Court considers that an additional amount of 16% is appropriate.
658 Furthermore, it must be observed that, since the applicant’s involvement in the single and continuous infringement cannot be legally established as regards intra-EEA routes and EU‑Switzerland routes, the multipliers used in recitals 1214 and 1216 of the contested decision cannot be taken into account for the purposes of calculating the amount of the fine.
659 However, it must be taken into account that, in the absence of turnover achieved by the applicant on intra-EEA routes and EU‑Switzerland routes and taking account of the method used by the Commission in the contested decision consisting of allocating, to each category of routes concerned, a specific value of sales calculated on the basis of the turnover achieved by the undertaking on that category of routes (see paragraph 52 above), the value of sales used, respectively, for intra-EEA routes and for EU‑Switzerland routes is, so far as the applicant is concerned, zero. Thus, the multiplier in respect of the duration of the applicant’s involvement in the single and continuous infringement is to be set, as regards intra-EEA routes and EU‑Switzerland routes, against a base of zero. Accordingly, the fact that the Court, by not departing from the method thus described, nevertheless refrains from taking account of the multipliers used in recitals 1214 and 1216 of the contested decision is not such as to reduce the amount of the fine imposed on the applicant. In other words, by the method which the Commission used to calculate the amount of the fine imposed on the applicant, the applicant has already largely avoided the imposition of a fine on the basis of its liability for the single and continuous infringement in so far as it concerns intra-EEA routes and EU‑Switzerland routes.
660 As for the multipliers linked to EU-third country routes and non-EU EEA‑third country routes, they are not disputed. They must therefore remain set at 1 9⁄12 and 8⁄12, respectively.
661 The basic amount of the fine must therefore be set at EUR 169 840 468.
662 As regards the general 50% reduction, the Commission’s request that the benefit of that reduction be withdrawn from the applicant cannot be granted. As is apparent from the defence, that request presupposes that the Court holds that the turnover from the sale of inbound freight services could not be included in the value of sales. The Court refused to do so in paragraph 650 above.
663 Consequently, the basic amount of the fine after application of the general 50% reduction, which applies only to the basic amount in so far as it relates to non-EU EEA‑third country routes and EU-third country routes (see recital 1241 of the contested decision), which the applicant has failed to challenge in the context of the claim for annulment and which is not inappropriate, must be set at EUR 84 000 000, after rounding down. In that regard, the Court considers it appropriate to round the basic amount down to the first two digits, except where that reduction represents more than 2% of the amount before rounding, in which case that amount is rounded up to the first three digits. That method is objective, affords all the incriminated carriers which have brought an action against the contested decision the benefit of a reduction and avoids unequal treatment (see, to that effect, judgment of 27 February 2014, InnoLux v Commission, T‑91/11, EU:T:2014:92, paragraph 166).
664 Lastly, as regards the adjustments to the basic amount of the fine, it should be borne in mind that the applicant benefited from the general 15% reduction, the sufficiency of which it disputes by the first complaint of the third part of the seventh plea relied on in support of the claim for annulment and in the sixth argument. For similar reasons to those set out in paragraphs 605 to 614 above, it must be held that none of the arguments put forward in that context is such as to show that that reduction is inappropriate. Conversely, the Commission’s request to withdraw the benefit of that reduction cannot be granted, for reasons similar to those set out in paragraph 662 above.
665 Furthermore, in so far as the Commission wrongly attributed the single and continuous infringement in so far as it concerned intra-EEA and EU‑Switzerland routes to the applicant (see paragraphs 218 to 247 above), it must be observed that the applicant could be held liable for that infringement only in so far as it concerned EU-third country routes and the non-EU EEA‑third country routes.
666 It follows that the applicant’s participation in the single and continuous infringement was significantly lower than that of most of the other incriminated carriers. The Court considers that the limited nature of that participation is such as to justify a greater reduction in the amount of the fine than that granted to Air Canada, Lan Cargo and SAS in recital 1258 of the contested decision, on the ground that they ‘operated on the periphery of the cartel [at issue], entered into a limited number of contacts with other carriers, and they did not participate in all elements of the [single and continuous] infringement’.
667 In those circumstances, the Court considers that it is appropriate to grant the applicant a 15% reduction in the amount of the fine on account of its limited participation in the single and continuous infringement, that level of reduction taking account of the specific features of the case referred to in paragraph 659 above.
668 By contrast, the Court does not consider that the seventh argument, which refers to the arguments raised in support of the second complaint in the third part of the seventh plea, is capable of demonstrating that the applicant’s participation in the single and continuous infringement was sufficiently limited to justify a reduction of more than 15% in the amount of the fine.
669 Nor does the Court consider that the eighth argument justifies granting the applicant a further reduction of the fine. That argument presupposes that the Court has upheld the plea raised of its own motion. However, as is apparent from paragraphs 192 to 217 above, the Court rejected that plea in its entirety.
670 In addition, it should be borne in mind that the applicant received a 20% leniency reduction, the appropriateness of which it does not dispute.
671 In the light of all the foregoing considerations, the amount of the fine imposed on the applicant must be calculated as follows: first, the basic amount is determined by applying, in view of the gravity of the single and continuous infringement, a percentage of 16% to the value of sales made by the applicant in 2005 on EU-third country routes and non-EU EEA‑third country routes, then, in respect of the duration of the infringement, multipliers of 1 9⁄12 and 8⁄12, respectively, and, lastly, an additional amount of 16%, resulting in an intermediate amount of EUR 166 655 719. After applying the general 50% reduction, that amount, rounded down, must be set at EUR 84 000 000. Next, after applying the general 15% reduction and an additional reduction of 15% on account of the applicant’s limited involvement in the single and continuous infringement, that amount must be set at EUR 58 800 000. Lastly, the latter amount must be reduced by 20% under the leniency programme, which results in a fine of a final amount of EUR 47 040 000.
IV. Costs
672 Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the Court may order each party to bear its own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.
673 In the present case, the applicant has been successful in respect of a substantial part of its claims. Accordingly, it is fair in the circumstances of the case to decide that the applicant is to bear one third of its own costs and that the Commission is to bear its own costs and pay two third of the applicant’s costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber, Extended Composition)
hereby:
1. Annuls Article 1(1)(g) and (4)(g) 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);
2. Sets the amount of the fine imposed on Cathay Pacific Airways Ltd in Article 3(g) of that decision at EUR 47 040 000;
3. Dismisses the action as to the remainder;
4. Orders Cathay Pacific Airways to bear one third of its own costs;
5. Orders the European Commission to bear its own costs and to pay two thirds of the costs incurred by Cathay Pacific Airways.
Kanninen | Schwarcz | Iliopoulos |
Delivered in open court in Luxembourg on 30 March 2022.
Table of contents
I. Background to the dispute
A. Administrative procedure
B. The Decision of 9 November 2010
C. Action challenging the Decision of 9 November 2010 before the Court
D. Contested decision
II. Procedure and forms of order sought
III. Law
A. The claims for annulment
1. The sixth plea in law, alleging lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services
(a) The first part of the plea, alleging incorrect interpretation of Regulation No 411/2004
(b) The second and third parts, alleging, respectively, an error in the application of the implementation test and an error in the application of the qualified effects test
(1) The effects of coordination in relation to inbound freight services taken in isolation
(i) The relevance of the effect at issue
(ii) The foreseeability of the effect at issue
(iii) The substantiality of the effect at issue
(iv) The immediacy of the effect at issue
(v) The alleged breach of the principles of international comity and ne bis in idem
(2) The effects of the single and continuous infringement taken as a whole
2. The plea, raised of the Court’s own motion, alleging a lack of jurisdiction on the part of the Commission in the light of the ECSwitzerland Air Transport Agreement to find and penalise an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes
3. The second plea in law, alleging an infringement of Article 25 of Regulation No 1/2003 and the principles of legal certainty, ‘justice’ and the sound administration of justice
4. The first plea in law, alleging, in essence, an error of law, an error of fact, an error of assessment and breach of the applicant’s rights of defence in that the applicant was held liable for the single and continuous infringement in relation to intra-EEA routes and EUSwitzerland routes
5. The fourth plea in law, alleging an inadequate statement of reasons for the applicant’s participation in the single and continuous infringement as regards intra-EEA routes and EUSwitzerland routes
6. The third plea in law, alleging errors in the imputation to the applicant of the single and continuous infringement
(a) The first part, alleging a failure by the Commission to carry out a specific examination in the light of each of the conditions laid down by the case-law for establishing the participation of an undertaking in a single and continuous infringement
(b) The second part, alleging, in essence, errors in establishing the existence of the single and continuous infringement
(c) The third part, alleging, in essence, errors in establishing the anticompetitive nature of the conduct in which the applicant participated
(1) The admissibility of Annex C.1 to the reply
(2) The merits of the present part of the plea
(i) The taking into account of contacts falling outside the Commission’s jurisdiction
(ii) The taking into account of contacts allegedly in the public domain
(iii) The taking into account of contacts made necessary by compliance with regulatory obligations
(d) The fourth part, alleging, in essence, errors in establishing the applicant’s participation in the single and continuous infringement with regard to its intentional contribution to the overall plan pursued by that infringement
(e) The fifth part, alleging, in essence, errors in establishing the applicant’s participation in the single and continuous infringement in the light of its knowledge of the unlawful conduct of the other participants
7. The fifth plea in law, alleging numerous errors, breach of the principle of equal treatment and a failure to state reasons concerning the applicant’s activities in third countries in the light of specific regulatory regimes applicable in those countries
(a) The first part of the fifth plea, alleging a breach of the obligation to state reasons
(b) The second part, alleging errors on the part of the Commission in the assessment of the regulatory regimes of third countries
(1) Hong Kong
(i) The arguments alleging infringement of the rules on the burden of proof and on the taking of evidence
(ii) The arguments alleging errors in the assessment of the facts
(iii) The arguments alleging the inapplicability of the defence alleging the existence of a State constraint in third countries and breach of the principles of international comity and non-interference
(2) Japan
(3) Other third countries
(c) The third part, alleging a breach of the principle of equal treatment
8. The seventh plea in law, alleging errors in the calculation of the amount of the fine
(a) The first part, relating to the determination of the value of sales
(1) The arguments relating to the taking into account of the full price of freight services
(i) The first complaint, based on an infringement of the 2006 Guidelines
(ii) The second complaint, based on a breach of the principle of proportionality
(iii) The complaint alleging a breach of the principle of equal treatment
(2) The arguments relating to the taking into account of the turnover generated on inbound routes
(b) The second part, concerning the determination of the gravity factor
(c) The third part, concerning the mitigating circumstances to be taken into consideration
(1) The first complaint, relating to the inadequacy of the general 15% reduction
(2) The second complaint, relating to the limited nature of the applicant’s participation in the single and continuous infringement
B. The claim for alteration of the amount of the fine imposed on the applicant
IV. Costs