JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
29 February 2016 (*)
(Competition — Agreements, decisions and concerted practices — International air freight forwarding services — Decision finding an infringement of Article 101 TFEU — Price fixing — Surcharges and charging mechanisms affecting the final price — Evidence contained in an application for immunity — Protection of the confidentiality of communications between lawyers and clients — Code of Conduct rules on the duty of loyalty and prohibition on double representation — Fiduciary duties — Whether unlawful conduct can be attributed — Choice of companies — Fines — Proportionality — Gravity of the infringement — Mitigating circumstances — Equal treatment — Cooperation — Partial immunity from a fine — Unlimited jurisdiction — Settlement — 2006 Guidelines on the method of setting fines)
In Case T‑267/12,
Deutsche Bahn AG, established in Berlin (Germany),
Schenker AG, established in Essen (Germany),
Schenker China Ltd, established in Shanghai (China),
Schenker International (HK) Ltd, established in Hong Kong (China),
represented by F. Montag, B. Kacholdt, F. Hoseinian, lawyers, and by D. Colgan and T. Morgan, Solicitors,
applicants,
v
European Commission, represented initially by A. Dawes and N. von Lingen, and subsequently by A. Dawes and G. Meessen, acting as Agents, and by B. Kennelly and H. Mussa, Barristers,
defendant,
APPLICATION for annulment of Commission Decision C(2012) 1959 final of 28 March 2012 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/39462 — Freight forwarding), in so far as it concerns the applicants, and for variation of the fines imposed on them in that decision,
THE GENERAL COURT (Ninth Chamber),
composed of G. Berardis, President, O. Czúcz (Rapporteur) and A. Popescu, Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written procedure and further to the hearing on 24 September 2014,
gives the following
Judgment
Background to the dispute and the contested decision
1 By Decision C(2012) 1959 final of 28 March 2012 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/39462 — Freight forwarding) (‘the contested decision’), the European Commission found that companies active in the international air freight forwarding services sector had, in periods between 2002 and 2007, participated in various agreements and concerted practices in the international air freight forwarding services sector, giving rise to four separate infringements of Article 101(1) TFEU and Article 53(1) of the Agreement on the European Economic Area (EEA).
2 The first applicant, Deutsche Bahn AG (‘DB’), is a joint-stock company governed by German law and wholly owned by the Federal Republic of Germany. DB is the holding company of a group of companies (‘the DB group’) providing mobility and logistics services worldwide. Under the brand DB Schenker and notably through the Schenker group of companies, which comprises a number of entities including Schenker AG (the second applicant), Schenker China Ltd (the third applicant) and Schenker International (HK) Ltd (the fourth applicant), the DB group provides, inter alia, air freight forwarding services. [confidential], (1) The Brink’s Company (‘Brink’s’) sold to DB a group of companies run by Bax Global Inc., one of which was Bax Global (China) Co. Ltd. After its business was transferred to Schenker China, Bax Global (China) ceased trading and ceased to exist.
3 The present case concerns only three of the four infringements referred to in paragraph 1 above, namely the currency adjustment factor (‘CAF’) cartel, the advanced manifest system (‘AMS’) cartel and the peak season surcharge (‘PSS’) cartel. It does not concern the new export system (‘NES’) cartel. As regards the latter infringement, another company in the DB group has brought an action which forms the subject matter of Case T‑265/12.
4 The cartels referred to in paragraph 3 above concern the market in international air freight forwarding services. According to the Commission’s description of that sector in recitals 3 to 71 of the contested decision, freight forwarding services may be defined as the organisation of transportation of items, which may also include activities such as customs clearance, warehousing or ground services, on behalf of customers according to their needs. The freight forwarding services have been segmented into domestic and international freight forwarding and into freight forwarding by air, land and sea (recital 3 of the contested decision).
5 The Commission’s findings in relation to the AMS, CAF and PSS cartels may be summarised as follows:
– the AMS cartel, which is described in recitals 131 to 163 of the contested decision, concerns a surcharge introduced from early 2003, following significant amendments to the AMS made by the United States Bureau of Customs and Border Protection after the terrorist attacks of 11 September 2001; a number of international freight forwarders agreed from at least 19 March 2003 until 19 August 2004 to fix a surcharge at a level that would enable them to cover at least the costs associated with the AMS; the discussions between the undertakings participating in the cartel and the monitoring of its implementation took place, in particular, within the framework of the Freight Forward International Association (named Freight Forward Europe before 1 January 2004; ‘the FFI Association’);
– the CAF cartel, which is described in recitals 213 to 263 of the contested decision, was aimed at finding an agreement on a common tariff strategy in order to deal with the risk of a fall in profits owing to the appreciation of the Chinese currency, the renminbi, against the United States dollar, following the decision of the People’s Bank of China in 2005 that it would no longer peg the renminbi to the United States dollar; a number of international freight forwarders decided to convert all contracts with their customers into renminbi and, if this was not possible, to introduce a surcharge (CAF) and to set its level; the discussions took place in China between 27 July 2005 and 13 March 2006;
– the PSS cartel, which is described in recitals 300 to 342 of the contested decision, concerned an agreement between a number of international freight forwarders between August 2005 and May 2007 relating to the application of a temporary rate adjustment factor; that factor was imposed as a reaction to increased demand in the air freight forwarding sector at certain times, such as the Christmas period, which led to a shortage of transportation capacity and an increase in transport rates; it was designed to protect the freight forwarders’ margins.
6 It is stated in recital 72 of the contested decision that the Commission began its investigation after an application for immunity was submitted by Deutsche Post AG (‘DP’) under the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the 2006 Leniency Notice’). DP supplemented its application for immunity by statements and documentary evidence. By letter of 24 September 2007 the Commission granted conditional immunity to DP with respect to an alleged cartel among the private providers of international air freight forwarding services, aimed at fixing or passing on various fees and surcharges.
7 The Commission carried out unannounced inspections between 10 and 12 October 2007.
8 [confidential] DB and its subsidiaries submitted an application for immunity or, failing that, for a reduction of the fine pursuant to the leniency programme (recital 76 of the contested decision).
9 On 5 February 2010 the Commission sent a statement of objections to the applicants, DB, Schenker, Schenker International (HK) and Schenker China, to which they responded (recitals 87 and 89 of the contested decision).
10 Between 6 and 9 July 2010 the Commission held a hearing in which the applicants took part (recital 89 of the contested decision).
11 In the contested decision, having regard to the evidence in its possession, the Commission held that the applicants had taken part in the AMS, CAF and PSS infringements and that, as an economic successor of Bax Global (China), Schenker China was liable for the participation of Bax Global (China) in the CAF cartel.
12 In Article 1(2)(g) of the contested decision, the Commission found that, in relation to the AMS cartel, Schenker and DB had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating from 25 March 2003 until 19 August 2004 in a single and continuous infringement in the air freight forwarding services sector, which covered the whole of the EEA, and which consisted in fixing prices or other trading conditions. Article 2(2)(g) of the contested decision provides that, for that infringement, a fine of EUR 23 091 000 was imposed jointly and severally on Schenker and DB. For their cooperation, Schenker and DB received a 25% reduction of their fine.
13 In Article 1(3)(a) of the contested decision, the Commission found that, in relation to the CAF cartel, Schenker China, as an economic successor of Bax Global (China), had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating, from 27 July 2005 until 13 March 2006, in a single and continuous infringement in the air freight forwarding services sector, which covered the whole of the EEA, and which consisted in fixing prices or other trading conditions. Article 2(3)(a) of the contested decision provides that, for that infringement, a fine of EUR 2 444 000 was imposed on Schenker China as an economic successor of Bax Global (China). For its cooperation, Schenker China received a 20% reduction of its fine.
14 In Article 1(3)(b) of the contested decision, the Commission found that, in relation to the CAF cartel, Schenker China and DB had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating, from 29 July 2005 until 13 March 2006, in a single and continuous infringement in the air freight forwarding services sector, which covered the whole of the EEA and which consisted in fixing prices or other trading conditions. Article 2(3)(b) of the contested decision provides that, for that infringement, a fine of EUR 3 071 000 was imposed jointly and severally on Schenker China and DB. For their cooperation, Schenker China and DB received a 20% reduction of their fine.
15 In Article 1(4)(h) of the contested decision, the Commission found that, in relation to the PSS agreement, Schenker International (HK) and DB had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating, from 3 September 2005 until 23 June 2006, in a single and continuous infringement in the air freight forwarding services sector which covered the whole of the EEA and which consisted in fixing prices or other trading conditions. Article 2(4)(h) of the contested decision provides that, for that infringement, a fine of EUR 2 656 000 was imposed jointly and severally on Schenker International (HK) and DB. For their cooperation, Schenker International (HK) and DB received a 50% reduction of their fine and the period from 4 February until 23 June 2006 was disregarded for the purposes of the fine.
16 It is stated in recital 856 of the contested decision that the fines imposed were calculated on the basis of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’).
Procedure before the General Court and forms of order sought
17 By application lodged at the General Court Registry on 12 June 2012, the applicants brought the present action.
18 On the proposal of the Judge-Rapporteur, the Court (Ninth Chamber) decided to open the oral part of the procedure and on 11 April 2014, by way of measures of organisation of procedure under Article 64 of the Rules of Procedure of 2 May 1991, sent questions in writing to the parties and invited the Commission to produce documents. The parties replied to the questions within the period prescribed and the Commission complied in part with the invitation to produce documents.
19 By order of 24 June 2014, adopted under the first paragraph of Article 24 of the Statute of the Court of Justice of the European Union and also under Article 65(b) and Article 66(1) of the Rules of Procedure of 2 May 1991, the Court (Ninth Chamber) ordered the Commission to produce a number of confidential statements and items of evidence. The Commission complied with that request within the prescribed period. Those documents were available for consultation by the lawyer acting for the applicants at the Court Registry before the hearing. On 9 September 2014 the applicants lodged their observations on those documents.
20 On 2 July 2014, as a measure of organisation of procedure provided for in Article 64 of the Rules of Procedure of 2 May 1991, the Court invited the parties to reply to a question. The applicants complied with that request within the time allowed.
21 By letter of 5 September 2014, the applicants lodged their observations on the report for the hearing.
22 The parties presented oral argument and replied to questions put by the Court at the hearing on 24 September 2014.
23 The applicants claim that the Court should:
– annul Article 1(2)(g), Article 1(3)(a) and (b) and Article 1(4)(h) of the contested decision;
– annul in total or, in the alternative, substantially reduce the fines imposed in Article 2(2)(g), Article 2(3)(a) and (b), and Article 2(4)(h) of the contested decision;
– order the Commission to pay the costs.
24 The Commission contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
Law
25 In support of their action, the applicants put forward six pleas in law.
26 The first plea in law relates to (i) an infringement of Articles 4, 7 and 27(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1), breach of the rights of the defence and the right to a fair hearing and (ii) an infringement of the principle of sound administration. In essence, the applicants maintain that the information and evidence contained in DP’s application for immunity were inadmissible.
27 By the second plea in law, the applicants claim that the Commission did not have the power to impose a fine with respect to the AMS cartel for the period before 1 May 2004, since that cartel was exempt from the application of European Union competition law, pursuant to Article 1 of Regulation No 141 of the Council of 26 November 1962 exempting transport from the application of Council Regulation No 17 (OJ, English Special Edition, Series I 1959-1962, p. 291).
28 The third plea in law concerns an infringement of Article 101(1) TFEU, Article 296 TFEU and Article 41 of the Charter of Fundamental Rights of the European Union, Articles 4, 7 and 23(2) of Regulation No 1/2003, and breach of the principles of personal liability and sound administration, in that Schenker China was held solely liable for the conduct of Bax Global (China).
29 By the fourth plea in law, first, the applicants claim that, in determining the amount of the fines on the basis of turnover exceeding the maximum theoretical amount that could have been generated by the AMS, CAF and PSS cartels, the Commission infringed Article 23(2) and (3) of Regulation No 1/2003, the principle of proportionality, the principle that the punishment must fit the offence, the principle of nulla poena sine culpa and the principle of sound administration, failed to have due regard to the 2006 Guidelines and committed errors of assessment. Second, they maintain that the Commission infringed Article 27(1) and (2) of Regulation No 1/2003 and the rights of the defence.
30 By the fifth plea in law, the applicants argue that, in evaluating the applications for immunity and reductions of fines, the Commission infringed Article 23(2) of Regulation No 1/2003 and the principle of equal treatment, failed to have due regard to the 2006 Leniency Notice and committed an error of assessment.
31 The sixth plea in law concerns the claim that the Commission infringed Article 23(2) of Regulation No 1/2003, breached the principle of equal treatment and made an error of assessment in refusing to enter into settlement talks, in accordance with the Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Regulation No 1/2003 in cartel cases (OJ 2008 C 167, p. 1; ‘the Commission Notice on settlement procedures’).
32 In their written pleadings, the applicants explain that the first, second and third pleas in law are relied on in support of the application for annulment of Article 1(2)(g), Article 1(3)(a) and (b), and Article 1(4)(h) of the contested decision and, ‘consequently’, are also aimed at the annulment of Article 2(2)(g), Article 2(3)(a) and (b), and Article 2(4)(h) of the contested decision. The fourth, fifth and sixth pleas in law and, in the alternative, the third plea in law are relied on in support of the application for annulment of Article 2(2)(g), Article 2(3)(a) and (b), and Article 2(4)(h) of the contested decision.
33 The applicants also request that the Court exercise its unlimited jurisdiction, the fourth, fifth and sixth pleas in law being relied on in support of that request. Further, as part of the third plea in law, the applicants claim that the amount of the fines should be reduced by the Court in the exercise of its unlimited jurisdiction.
34 In that context, it must be recalled that the review of legality of decisions adopted by the Commission 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.
35 That jurisdiction empowers the Courts, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for that of the Commission and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed. Where the findings on which the Commission has relied in order to determine the amount of the fine or periodic penalty payment imposed are vitiated by an illegality, but where the final amounts have to be regarded as appropriate, the unlimited jurisdiction empowers the Courts to maintain the amount of the fine.
36 It is therefore for the General Court, in the exercise of its unlimited jurisdiction, to assess, on the date on which it adopts its decision, whether the fine imposed on the applicants was one whose amount properly reflects the gravity and duration of the infringement in question (see, to that effect, judgment of 27 September 2012 in Shell Petroleum and Others v Commission, T‑343/06, ECR, EU:T:2012:478, paragraph 117 and the case-law cited).
37 It must, however, be stated that the exercise of unlimited jurisdiction does not amount to a review of the Court’s own motion, and be borne in mind that proceedings before the Courts of the European Union are inter partes (judgment of 8 December 2011 in KME Germany and Others v Commission, C‑389/10 P, ECR, EU:C:2011:816, paragraph 131).
1. The first plea in law: (i) infringement of Articles 4, 7 and 27(2) of Regulation No 1/2003, breach of the rights of the defence and the right to a fair hearing and (ii) an infringement of the principle of sound administration
38 This plea in law is aimed at the Commission’s conclusion, in recital 658 of the contested decision, that it was entitled to use information and evidence contained in DP’s application for immunity.
39 The plea can be broken down into two parts. First, the applicants claim that, by using the information and evidence contained in DP’s application for immunity, the Commission infringed Articles 4, 7 and 27(2) of Regulation No 1/2003, the rights of the defence and the right to a fair hearing. Second, the applicants claim that the Commission was in breach of the principle of sound administration by not taking due account of the arguments which they put forward during the administrative procedure.
The first part: infringement of Articles 4, 7 and 27(2) of Regulation No 1/2003, the rights of the defence and the right to a fair hearing
40 The applicants argue that, by using the information and evidence contained in DP’s application for immunity, the Commission infringed Articles 4, 7 and 27(2) of Regulation No 1/2003, the rights of the defence and the right to a fair hearing, recognised by EU law and enshrined in Article 47 and Article 48(2) of the Charter of Fundamental Rights, and in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950.
41 According to the applicants, in this case, the Commission was not entitled to use the information and evidence contained in DP’s application for immunity concerning the AMS cartel, should have closed the investigation or, at the least, should have disregarded that information and evidence in the file. First, since the law firm C. acted for DP with respect to drawing up and submitting that immunity application, that firm was in breach of its obligation of professional secrecy and of the prohibition on double representation or the principle of loyalty to former clients. According to the applicants, that law firm played a dual role. On the one hand, it had been the legal adviser of the FFI Association and its individual members, including DP. On the other hand, at the same time or, at the very least, shortly after that relationship came to an end, when it was still subject to legal obligations resulting from its having acted as legal adviser to the FFI Association and its individual members, that firm acted for DP, at least as from 27 July 2006, in collecting, compiling, analysing and submitting information indicating potential breaches of European Union competition rules to a number of competition authorities, including the Commission. Second, DP was in breach of its fiduciary obligations as President and Secretary of the FFI Association. The reason why DP chose to be assisted by the law firm C. in its immunity application was undoubtedly that DP wished to benefit from the particular relationship between that firm and the FFI Association and the privileged information that that firm therefore possessed. Since the conduct concerning the AMS cartel, in which the members of the FFI Association to whom the contested decision was addressed were involved, and the conduct concerning the CAF and PSS cartels were closely related, nor was the Commission entitled to use the information and evidence contained in DP’s application for immunity with respect to the latter two cartels.
42 The Commission disputes those arguments. In particular, the Commission contends that, in so far as, in the reply, the applicants claim that under EU law a lawyer is prohibited from using knowledge and information obtained from his client to the disadvantage of that client, that is a new plea in law, which has to be regarded as being inadmissible.
43 In that regard, it must be recalled that the principle which prevails in EU law is that the evidence may be freely adduced (judgment of 8 July 2004 in Dalmine v Commission, T‑50/00, ECR, EU:T:2004:220, paragraph 72).
44 As a general rule, no provision or general principle of EU law prohibits the Commission from relying, as against an undertaking, on statements made by other incriminated undertakings. If that were not the case, the burden of proving conduct contrary to Articles 101 TFEU and 102 TFEU, which is borne by the Commission, would be unsustainable and incompatible with the task, entrusted to it by the FEU Treaty, of supervising the proper application of those provisions (judgment of 8 July 2004 in JFE Engineering and Others v Commission, T‑67/00, T‑68/00, T‑71/00 and T‑78/00, ECR, EU:T:2004:221, paragraph 192).
45 However, the powers available to the Commission during the preliminary phases of investigation and collection of information must be reconciled with compliance with the fundamental rights and general principles of EU law, which apply to all procedures under the European Union competition rules.
46 That case-law and those principles must guide the Court in its examination of the submissions concerning, first, an infringement of the obligation of professional secrecy, second, the prohibition on dual representation and the principle of loyalty and, third, DP’s fiduciary duties.
The submission concerning an infringement of the obligation of professional secrecy
47 The applicants argue that, since the law firm C. infringed the obligation of professional secrecy, the information and evidence contained in DP’s immunity application are inadmissible and ought not to have been used by the Commission.
48 In that context, it must be recalled that the confidentiality of communications between lawyers and clients is protected at the level of EU law (see, to that effect, judgment of 18 May 1982 in AM & S Europe v Commission, 155/79, ECR, EU:C:1982:157, paragraphs 18 to 28).
49 Accordingly, as regards investigative measures taken by the Commission which relate to communications between lawyers and clients, it is apparent from settled case-law that, the protection of confidentiality precludes the Commission reading the content of such communications. Further, were the Commission to have read them, the protection of confidentiality would preclude the Commission using such communications as the basis for a decision imposing a fine for an infringement of European Union competition law (see, to that effect, judgment of 17 September 2007 in Akzo Nobel Chemicals and Akcros Chemicals v Commission, T‑125/03 and T‑253/03, ECR, EU:T:2007:287, paragraphs 86 to 88 and the case-law cited).
50 The applicants claim that, in this case, the protection of the confidentiality of communications between lawyers and clients also precluded the Commission from using the information and evidence contained in DP’s immunity application. Since the reason for confidentiality of communications between lawyers and clients is that clients should be able be wholly candid in what they confide to their lawyers, without fear of a later disclosure of their communications which could be prejudicial to their interests, those communications should be protected not only in relation to investigative measures taken by the Commission, but also in relation to a disclosure by a lawyer which is contrary to the obligation of professional secrecy.
51 In that regard, suffice it to state that it is apparent from recital 658 of the contested decision that all the information and evidence which DP submitted in its application for immunity was available to all the members of the FFI Association. Consequently, according to the Commission’s findings, the information and evidence contained in DP’s immunity application was available to DP, irrespective of whether there was a breach, by the law firm C., of the obligation of professional secrecy.
52 The applicants do not put forward any argument which can call into question that finding. It is clear that, notwithstanding the fact that the undertaking by which the applicants are owned was a member of the FFI Association and that they were therefore well placed to monitor whether that finding by the Commission was well founded, there is nothing in DP’s application for immunity which the applicants identify as having been disclosed by the law firm C. in breach of the obligation of professional secrecy, and the applicants do no more than claim that the reason why DP chose to be advised by the law firm C. with respect to the preparation of its immunity application could have been only that it wanted to ‘benefit from … privileged circumstances’ with respect to the earlier link between that firm and the FFI Association and its members.
53 Consequently, the Court must reject the submission concerning an infringement of the obligation of professional secrecy, and there is no need to rule on whether the protection of the confidentiality of communications between lawyers and clients precludes the Commission using documents which have been submitted to it by an undertaking after those documents may have been disclosed to that undertaking by a lawyer in breach of the obligation of professional secrecy.
The submission concerning an infringement of the prohibition on double representation and the principle of loyalty
54 The applicants claim that the evidence contained in DP’s immunity application was inadmissible by reason of the fact that, by acting for DP with regard to the preparation and submission of its application for immunity, the law firm C. was in breach of the prohibition on double representation and the principle of loyalty laid down by the Charter of Core Principles of the European Legal Profession and the Code of Conduct for European Lawyers.
55 In that regard, first, it must be observed that there are no provisions of EU law which state that the Commission is not entitled to use information and evidence submitted to it by an undertaking in an application for immunity, where the lawyer who has acted for that undertaking has infringed the prohibition on double representation or the duty of loyalty to his or her former clients.
56 Secondly, having regard to the fact that the fundamental rights and general principles of EU law must also be respected by the Commission during the preliminary phases of investigation and collection of information (see paragraph 45 above), the Court must examine whether, in this case, the Commission could properly use the information and the evidence contained in DP’s immunity application.
57 In that context, it must initially be observed that the prohibition on double representation and the duty of loyalty relied on by the applicants are intended not only to ensure the independence and loyalty of lawyers, but also to ensure that lawyers are not placed in a situation where, because of a conflict between the interests of their various clients, they are likely to find themselves in breach of the obligation of professional secrecy.
58 Yet, even on the assumption that (i) the Code of Conduct relied on by the applicants is to be deemed to be the expression of general principles which must be taken into account in the procedure before the Commission and (ii) the conduct of the law firm C. did not comply with that code, it is clear that, in the circumstances of this case, the Commission did not err in concluding that it was entitled to use the information and evidence contained in DP’s immunity application.
59 As stated in paragraphs 51 and 52 above, in the circumstances of this case, the Commission was entitled to take the view that the information and evidence contained in that application were not the fruit of a breach of the obligation of professional secrecy committed by the law firm C. and that DP was therefore the source. Further, an undertaking is under no obligation to be advised by or represented by a lawyer with respect to the preparation and submission of an immunity application. In the light of those circumstances, even if both assumptions referred to in paragraph 58 above apply, the submissions concerning the conduct of the law firm C. are not such as to preclude the Commission using the information and evidence contained in DP’s immunity application. In that context, it must also be observed that any breach, by the lawyers belonging to the law firm C., of the rules of a national code of conduct applicable to them could be punished under national law.
60 Consequently, the Court must reject the submission concerning a breach of the prohibition on double representation and the principle of loyalty, and there is no need to rule on whether those represent the expression of general principles which must be taken into account in the procedure before the Commission and whether the conduct of the law firm C. complied with those principles.
The submission concerning a breach of DP’s fiduciary duties
61 The applicants claim that DP’s immunity application was inadmissible by reason of the fact that DP was in breach of the fiduciary duties incumbent on it because of its position as President and Secretary of the FFI Association.
62 First, in so far as the subject of that submission by the applicants is intended to be the very decision made by DP to cooperate with the Commission, the submission must be rejected. In that regard, in the first place, it must be recalled that the powers available to the Commission during the preliminary phases of investigation and collection of information are not available to undertakings. That is particularly true with respect to an instrument such as the 2006 Leniency Notice, taking into consideration the fact that the Commission’s aim in that notice is to encourage undertakings to reveal the existence of unlawful cartels and to cooperate with its investigation, by reporting the conduct of undertakings which took part in the cartels.
63 In the second place, in so far as the subject of this submission is solely the decision by DP to be advised specifically by the law firm C., the submission must again be rejected. Even on the assumption that, by choosing to be advised by the law firm C., DP was in breach of its fiduciary duties, having regard to the interests at stake in this case, that would not preclude the Commission using the information and evidence contained in its application for immunity (see paragraph 59 above). In that context, it must also be stated that, if the duties relied on by the applicants should not themselves be regarded as prohibited and legally void pursuant to Article 101(2) TFEU, the breach of the duties relied on by the applicants could, in any event, be punished under national law.
64 Accordingly, the Court must also reject the third submission, concerning an infringement of DP’s fiduciary duties.
65 Consequently, the first part of this plea in law must be rejected in its entirety, and there is no need to rule on the objection of inadmissibility made by the Commission.
The second part: infringement of the principle of sound administration
66 The applicants argue that the Commission infringed the principle of sound administration by not taking due account of the arguments which they had put forward during the administrative procedure, concerning the breach of the obligation of professional secrecy, the prohibition on double representation, the duty of loyalty and fiduciary duties.
67 The Commission disputes that argument.
68 It must initially be recalled that, in a procedure seeking to impose a fine on undertakings for an infringement of Article 101 TFEU, the Commission may not confine itself to examining the evidence put forward by the undertakings, but must, as a matter of sound administration, play its part, using the means available to it, in ascertaining the relevant facts and circumstances (see, to that effect, judgment of 13 July 1966 in Consten and Grundig v Commission, 56/64 and 58/64, ECR, EU:C:1966:41, p. 347).
69 In this case, the Commission took into consideration the arguments concerning a breach of the obligation of professional secrecy. As stated in paragraphs 51 and 52 above, the Commission examined the source of the information and evidence contained in DP’s immunity application and found that that information and evidence was available to DP, irrespective of any breach, by the law firm C., of the obligation of professional secrecy. The applicants have not put forward any argument to show that those findings of the Commission were vitiated by error.
70 Further, as regards the arguments concerning the infringements of the prohibition on double representation, the duty of loyalty and DP’s fiduciary duties, suffice it to state, with reference to paragraphs 54 to 64 above, that, in the circumstances of this case, such infringements, even if established, would not have been such as to prevent the Commission using the information and evidence contained in DP’s immunity application. Accordingly, nor was the Commission obliged to examine those arguments.
71 In the light of the foregoing, the second part of the first plea in law must also be rejected, and, consequently, the first plea must be rejected in its entirety, and there is no need to answer the question whether the infringements relied on by the applicants, which concerned the AMS cartel, were capable of affecting the lawfulness of the contested decision with respect to the CAF and PSS cartels.
2. The second plea in law: infringement of Article 1 of Regulation No 141
72 This plea in law concerns the Commission’s conclusion in recitals 644 to 648 of the contested decision that it was entitled to rely on Regulation No 1/2003 as the basis for penalising Schenker China for the participation of Bax Global (China) in the AMS cartel for the period before 1 May 2004. According to the Commission, before 1 May 2004, that cartel was not exempted from the scope of Regulation No 17 of the Council of 6 February 1962, First Regulation implementing Articles [101 TFEU] and [102 TFEU] (OJ, English Special Edition, Series I 1959-1962, p. 87) because of the transport exemption provided for by Article 1 of Regulation No 141. In that context, the Commission relied on, inter alia, the finding that the participants in the AMS cartel coordinated their behaviour in order to remove uncertainty in relation to various elements of price in the freight forwarding sector and it was therefore the rates for freight forwarding services which were affected by that cartel and not the rates for transport services. Even if the freight forwarders had had contractual relationships with the air carriers, those relationships would have been the basis for the provision of air transport services, but not for the provision of the freight forwarding services affected by the AMS cartel.
73 The applicants consider that those findings of the Commission are misconceived. Pursuant to Article 1 of Regulation No 141, the Commission had, according to the applicants, no power to penalise Schenker China for the participation of Bax Global (China) in the AMS cartel for the period before 1 May 2004.
74 In that context, it must be recalled that Regulation No 1/2003, as amended following 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 in connection with air transport between the Community and third countries (OJ 2004 L 68, p. 1), on which the Commission based the contested decision, applies to air transport.
75 However, under the legislation which was in force before Regulation No 1/2003 became applicable, that is before 1 May 2004, cartels affecting air transport between the Community and third countries were exempted from the scope of Regulation No 17. Under Article 1 of Regulation No 141, Regulation No 17 did not apply to agreements in the transport sector which had as their object or effect the fixing of transport rates and conditions, the limitation or control of the supply of transport or the sharing of transport markets. It is true that Article 1 of Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedures for the application of the rules on competition to undertakings in the air transport sector (OJ 1987 L 374, p. 1), as amended by Council Regulation (EEC) No 2410/92 of 23 July 1992 (OJ 1992 L 240, p. 18), provided for the removal of that exemption in the case of air transport between Community airports, but not in the case of air transport between the Community and third countries.
76 In essence, the applicants therefore claim that, before 1 May 2004, the AMS cartel was exempted from the scope of Regulation No 17 by virtue of Article 1 of Regulation No 141. According to the applicants, freight forwarding services and AMS filing services are part of the transport process and therefore constitute transport services within the meaning of that article. In any event, freight forwarding services as a whole and, more specifically, AMS services, were directly related to air transport. Consequently, the Commission was not entitled to penalise Schenker China under Regulation No 1/2003 for the participation of Bax Global (China) in the AMS cartel prior to 1 May 2004.
77 The Court must first examine the applicants’ arguments concerning the interpretation of Article 1 of Regulation No 141, and then examine their arguments concerning the Commission’s conclusion that the AMS cartel affected not transport services, but freight forwarding services.
The interpretation of Article 1 of Regulation No 141
78 The applicants maintain that the aim of Article 1 of Regulation No 141 is to exclude a range of activities within the transport sector, namely all the activities which are part of the transport process, since the concept of an industry sector may be wider than that of the market at issue. When assessing the activities which are exempted by that article, account should be taken of the nature of the undertakings’ economic activity. In that context, no distinction can be made as regards the various levels of activity of an undertaking. Accordingly, in the case of Bax Global (China), the Commission should not have distinguished the acquisition of cargo space from carriers, on the one hand, and the provision of that space to shippers, on the other. Further, the applicants argue that Article 1 of Regulation No 141 must be applied to services related to transport, on the ground that that article refers to ‘transport conditions’ and the preamble of that regulation refers to agreements, decisions and concerted practices directly relating to the provision of transport services.
79 The Commission disputes those arguments.
80 In that regard, in the first place, it must be recalled that, in order to be exempted from the scope of Regulation No 17 by Article 1 of Regulation No 141, the conduct of an undertaking must have as its object or effect the restriction of competition in a transport market. According to the third recital of Regulation No 141, only conduct directly relating to the provision of transport services is to be exempted by Article 1 of that regulation.
81 Further, it must be recalled that, according to the case-law, the conduct of an undertaking which does not affect air transport itself, but a market situated upstream or downstream of air transport, cannot be regarded as directly relating to the provision of transport services and is therefore not exempted by Article 1 of Regulation No 141 (see, to that effect, judgment of 17 December 2003 in British Airways v Commission, T‑219/99, ECR, EU:T:2003:343, paragraphs 171 and 172).
82 In the light of the foregoing, the interpretation of Article 1 of Regulation No 141 advocated by the applicants cannot be accepted.
83 To read Article 1 of Regulation No 141 as meaning that that provision is not confined to exempting cartels concerning air transport services, but that it exempts a set of activities within the air transport sector, is not compatible with either the wording of that provision, or the third recital of that regulation, or the abovementioned case-law, from which it is apparent that the cartel must directly relate to the provision of air transport services.
84 Next, contrary to what is argued by the applicants, Article 1 of Regulation No 141 does not exempt the activities of an undertaking in their entirety solely because one part of its activities concern air transport services. Consequently, even if an undertaking seeks to obtain transport services on an upstream market, its activities on a downstream market, which are not directly related to transport services, are not exempted by virtue of that article.
85 Further, the Court must reject the interpretation, advocated by the applicants, that Article 1 of Regulation No 141 exempts all services which are directly linked to transport services. As follows from the considerations set out in paragraph 83 above, that provision is confined to exempting cartels directly relating to transport services, and does not exempt cartels relating to services which are directly linked to transport services.
86 Last, in so far as, in support of the reading of Article 1 of Regulation No 141 which they propose, the applicants claim that the article refers to ‘transport … conditions’, suffice it to state that that expression does no more than provide clarification that not only is it cartels affecting rates for transport services which are exempted, but also those fixing trading conditions within the meaning of Article 101(1)(a) TFEU. However, contrary to what is argued by the applicants, it cannot be inferred that services which are not transport services, but which have a direct link with transport services, are also exempted from the application of Regulation No 17.
The services affected by the AMS cartel
87 The applicants also call into question the Commission’s conclusion that the AMS cartel affected freight forwarding services as a package of services.
88 In that regard, in recitals 3 to 6, 64 to 66, 614, 621, 867 to 872 and 877 to 879 of the contested decision, in particular, the Commission stated that, from an economic perspective, the freight forwarders transformed the transport services and other inputs into freight forwarding services, which responded to a specific demand from their customers. That demand was not satisfied by the individual services which are components of freight forwarding services. The freight forwarders offered a package of services to their customers which enabled them easily to ship goods, without having to concern themselves with the details of the organisation of transport. Those services included air transport services, but could also include warehousing services, or services relating to cargo handling, logistics or ground transport and customs and fiscal matters. If the shippers were obliged to acquire themselves the individual services required to ensure that the goods arrived at their destination, first, they would have to coordinate the various operations at their own risk, and, second, they would not be able to profit from the economies of scale which the freight forwarders are able to achieve by consolidating the goods of their various customers. In contrast, the freight forwarders prefinanced or purchased the services of third parties required for the provision of freight forwarding services wholesale and in advance and were in a position, by bringing together by way of consolidation the goods of their own customers in cargoes of the optimal weight and size, to take advantage of economies of scale and to use those capacities more efficiently than one of their customers would be able to if he attempted to purchase air transport services or related services directly from an air carrier, a ground handling company or a warehousing company. For the customers of the freight forwarders, freight forwarding services therefore had a higher value than that of their inputs considered individually.
89 Moreover, in, inter alia, recitals 209 to 212, 572, 621, 645, 868, 869 and 872 of the contested decision, the Commission found that, even though, in the AMS, CAF and PSS cartels, the freight forwarders entered into an agreement only on the AMS, CAF and PSS surcharges, those cartels affected freight forwarding services. In that context, first, the Commission relied on the consideration that those surcharges were part of the total price which the customers had to pay for the provision of freight forwarding services. Second, the Commission stated, with regard to the AMS cartel, that the freight forwarders which participated in that cartel were not merely suppliers of AMS filing services, did not regard third parties who were not freight forwarders and who offered individual AMS filing services as actual or potential competitors and did not attempt to involve such suppliers in the AMS cartel. Third, the Commission held that it was clear from the evidence in its possession that the decision of a freight forwarder not to pass on risk or cost factors to their customers in the form of a surcharge was likely to confer on it a competitive advantage on the market for freight forwarding services as a package of services. Since freight forwarding is a low margin market, even a small price increase or surcharge imposition or absence thereof could play a decisive role in whether or not the freight forwarders lose customers, whether or not they maintain their client base or whether or not they gain new business opportunities at the expense of their competitors.
90 The applicants consider that those findings are erroneous.
91 The applicants’ first argument is that the Commission ignored the fact that transport services were included in freight forwarding services and that, from the point of view of the freight forwarders’ customers, the transport services were very important, since the organisation of transport as such, without the actual transport, did not meet their needs. The freight forwarders’ contractual obligation towards their customers went beyond merely organising the transportation of goods from their origin to their destination. From the customer’s perspective, the product or service in question is cargo space, whether it is provided by a carrier or a freight forwarder.
92 The Commission disputes that argument.
93 This submission must be rejected.
94 In that regard, it must be observed that, in the contested decision, the Commission did not dispute that, from the perspective of the freight forwarders’ customers, transport services constituted an important element of freight forwarding services. The Commission confined itself to finding that, even though freight forwarding services included transport services, the former had to be distinguished from the latter. Further, in so far as the applicants argue that, from the perspective of the freight forwarders’ customers, the services which the freight forwarders offer is the provision of cargo capacity, it is clear that that proposition is merely asserted and that the applicants offer no argument to demonstrate that the Commission’s findings as set out in paragraph 88 above, that a distinction must be made between freight forwarding services and transport services, are vitiated by error.
95 The applicants’ second argument is that, first, that the Commission failed to take sufficient account of the fact that they frequently leased entire aircraft, which allowed them to determine the destination and schedule of transport services, and that they bore the economic risk attached to using the available cargo capacity. Second, the freight forwarders often themselves performed the transport services, either wholly or in part. Thus, even where the transportation was classified as ‘air freight’, over short distances they themselves often provided such transportation by land using the fleet of trucks available to them.
96 The Commission disputes those arguments.
97 This submission must also be rejected.
98 In that regard, it is clear that the fact relied on by the applicants, that they lease entire aircraft and bear the economic risk attached to using the available cargo capacity, does not allow the inference that their entire activity concerns transport services. Admittedly, to the extent that the freight forwarders acquire air transport services from the carriers, their activity concerns the air transport market. However, as stated in paragraph 84 above, the fact that the applicants seek to obtain services on the air transport services market is not sufficient ground for their entire activity being exempted pursuant to Article 1 of Regulation No 141. Yet, according to the Commission’s finding as stated in paragraphs 88 and 89 above, the AMS cartel did not affect the transport services market, but the freight forwarding services market, on which market the freight forwarders offer freight forwarding services to their customers and which market is downstream of the transport services market. In any event, the applicants do not challenge the Commission’s finding in recital 6 of the contested decision that the majority of the freight forwarders do not themselves provide air transportation.
99 Further, the fact that, as part of the provision of freight forwarding services, the applicants themselves take charge of some or all transport services by land does not alter the fact that the services affected by the AMS cartel were not transport services, but freight forwarding services in the form of a package of services.
100 The applicants’ third argument is that the air carriers negotiate air transport contracts directly with major customers and that the carriers can themselves lease aircraft from suppliers. Accordingly, the freight forwarders are in fact in direct competition with the air carriers.
101 The Commission disputes those arguments.
102 In that regard, it must be observed that those arguments fail to call into question the Commission’s finding that freight forwarding services have to be distinguished from transport services, because, in the form of a package of services, they meet a specific demand from customers from whose perspective, economically, the freight forwarding services and the individual component services are not interchangeable. The fact that some major customers of the carriers negotiate air transport contracts directly with the carriers fails to demonstrate that, for the majority of the freight forwarders’ customers, for the reasons set out in paragraph 88 above, economically, the individual services which make up the freight forwarding services and the freight forwarding services are interchangeable. Consequently, that argument must be rejected, and there is no need to consider whether that argument, which, in this case, was only put forward at the hearing, can be regarded as admissible.
103 Moreover, the applicants do not explain how the fact that the carriers lease aircraft for use to provide air transport services could be capable of calling into question the Commission’s finding that the services affected by the AMS cartel were freight forwarding services which have to be distinguished from transport services.
104 This submission must therefore be rejected.
105 The applicants’ fourth argument is that the Commission failed to take into account the fact that goods could not be transported without the AMS declaration. The Commission applied a false criterion for the determination of whether there was a direct relationship between the freight forwarding services (as a whole or solely those concerning AMS), on the one hand, and air transport, on the other. The AMS declaration is a precondition of a transport activity, since a failure to file AMS documents would jeopardise the possibility of air transport to the United States. A relationship with air transport also exists for freight forwarding services as a whole.
106 The Commission disputes those arguments.
107 In that regard, it is clear that, in recital 647 of the contested decision, the Commission recognised that compliance with the AMS procedure could constitute a legal precondition for transportation in the freight forwarding sector and that a failure to comply with that procedure might jeopardise the transport by air of some goods. The Commission therefore took into account the importance of AMS filing services for the transport services.
108 Furthermore, the Court must observe that the arguments put forward by the applicants, claiming a link between the AMS procedure and the transport services, and a link between the transport services and the freight forwarding services, fail to call into question the merits of the Commission’s findings. The AMS cartel affected freight forwarding services, and Article 1 of Regulation No 141 exempts only cartels directly related to transport services (see paragraph 85 above), but not cartels affecting services linked to transport services. Therefore, the links between the AMS procedure and the air transport services to the United States, and the links between transport services and freight forwarding services, are not capable of calling into question the Commission’s conclusion that the AMS cartel was not exempted.
109 That submission must therefore be rejected, and there is no need to examine whether the Commission’s further findings as stated in recital 647 of the contested decision, that, first, the absence of freight forwarding services or failure to comply with the AMS procedure would not jeopardise the possibility of air transport services as such and, second, the service relating to the AMS procedure could be supplied by service providers other than the air carriers or the freight forwarders, are of relevance.
110 The applicants’ fifth argument is that the rules of the International Air Transport Association (IATA) apply not only to relationships between carriers and freight forwarders, but also to those between the freight forwarders and their customers.
111 The Commission disputes that argument.
112 In that regard, suffice it to state that the scope of the IATA rules fails to call into question the Commission’s finding that there is a specific demand for freight forwarding services as a package of services which, for the reasons set out in paragraph 88 above, economically, cannot be replaced by the individual component services.
113 Consequently, none of the arguments put forward by the applicants demonstrate that the Commission misinterpreted or misapplied Article 1 of Regulation No 141.
114 The second plea in law must therefore be rejected in its entirety.
3. The third plea in law, concerning the Commission’s decision to hold Schenker China solely liable for the conduct of Bax Global (China)
115 By this plea in law, the applicants challenge the Commission’s decision to hold Schenker China solely liable for the participation of Bax Global (China) in the CAF cartel, at least as regards the period before January 2006. The plea has three parts. By the first part, claiming in particular an infringement of Article 101(1) TFEU and the principle of personal liability, the applicants argue that there is no legal basis for holding Schenker China liable for the conduct of Bax Global (China). By the second part of the plea, claiming an infringement of Article 41 of the Charter of Fundamental Rights and the principle of sound administration, the applicants criticise the Commission for having failed to investigate whether Brink’s, the former parent company of Bax Global (China), should either together with Schenker China or alone have been held liable for the conduct of Bax Global (China). By the third part of the plea, claiming an infringement of Article 296 TFEU, the applicants complain that the Commission failed to state in the contested decision sufficient reasons in that regard.
The first part, claiming in particular an infringement of Article 101(1) TFEU and breach of the principle of personal liability
116 This part of the plea concerns the Commission’s decision to hold Schenker China to be solely liable for the participation of Bax Global (China) in the CAF cartel.
117 In recitals 664 and 755 of the contested decision, the Commission stated that (i) Bax Global (China) had participated in the CAF cartel between 27 July 2005 and 13 March 2006; (ii) before the adoption of the contested decision, Bax Global (China) had entered into an absorption merger agreement with one of its affiliated companies, Schenker China; and (iii) before the date of adoption of the contested decision, Bax Global (China) had been deregistered and liquidated without any legal successor and therefore could not be an addressee of the decision. The Commission concluded that Schenker China could be held liable as the economic successor of Bax Global (China).
118 The applicants consider that, by acting in this way, the Commission was in breach of the principle of personal liability, Article 101(1) TFEU, and Articles 4, 7, and 23(2) of Regulation No 1/2003. In this case, there was no legal basis for holding Schenker China liable for the participation of Bax Global (China) in the CAF cartel. Contrary to the Commission’s findings, the acquisition by absorption merger of Bax Global (China) by Schenker China did not result in a transfer of liability for the conduct of the undertaking by which Bax Global (China) was owned between 27 July 2005 and the date of its acquisition by the DB Group and which had been controlled by Brink’s. Since Brink’s still existed on the date of adoption of the contested decision, the Commission should have held Brink’s liable for the conduct of Bax Global (China), and not Schenker China. The transfer of liability to a new legal person is conditional upon such new legal person constituting, together with the original legal person, one and the same undertaking for the purposes of the application of the European Union competition rules, which was not true in this case.
119 The Commission disputes those arguments.
120 In that regard, it must be recalled, first, that where a company infringes the competition rules, it falls to that company, in accordance with the principle of personal responsibility, to answer for that infringement.
121 However, as the Commission correctly stated in recital 664 of the contested decision, the principle of personal responsibility does not mean that, in some circumstances, the economic successor of a company cannot be held liable for the conduct of that company.
122 Thus, first, it is apparent from the case-law that the economic successor of a legal entity which is responsible for an infringement of European Union competition law may be held liable, where that entity has ceased to exist at the time when the Commission decision is adopted (see, to that effect, judgments of 24 September 2009 in Erste Group Bank and Others v Commission, C‑125/07 P, C‑133/07 P and C‑137/07 P, ECR, EU:C:2009:576, paragraphs 77 to 83, and 5 December 2013 SNIA v Commission, C‑448/11 P, EU:C:2013:801, paragraph 23).
123 Secondly, where a company responsible for an infringement of competition law transfers the economic activity on the market concerned to another company at a time when those two companies are part of the same undertaking, the company to which the activity was transferred may be held liable by reason of the structural links which existed then between those two companies (see, to that effect, judgments of 7 January 2004 in 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, ECR, EU:C:2004:6, paragraphs 354 to 360, and 31 March 2009 ArcelorMittal Luxembourg and Others v Commission, T‑405/06, ECR, EU:T:2009:90, paragraphs 106 to 119).
124 In the two situations mentioned above, an attribution of liability to the economic successor is justified in the interests of achieving effective implementation of the competition rules. If the Commission did not have such an option, undertakings would find it easy to evade penalties by means of restructuring, transfers or other legal or organisational changes. The objective of punishing conduct which is contrary to the competition rules and preventing its repetition by means of deterrent penalties would thus be compromised.
125 Since the Commission established that, before the adoption of the contested decision, Bax Global (China) entered into an absorption merger agreement with Schenker China, an affiliated company, and was then deregistered and liquidated with no legal successor (see paragraph 117 above), the Commission was entitled to hold Schenker China liable for the infringement committed by Bax Global (China), pursuant to the case-law and principles referred to in paragraphs 122 and 123 above.
126 None of the arguments put forward by the applicants can call into question that conclusion.
127 The applicants’ first argument is that it is apparent from paragraphs 61 to 64 of the judgment of 30 September 2009 in Hoechst v Commission (T‑161/05, ECR, EU:T:2009:366), that it is solely Brink’s, as the former parent company of Bax Global (China), who should answer for the infringement.
128 In that regard, the Court must observe that since Bax Global (China) participated in the CAF cartel (see paragraph 117 above), it can be held liable for it.
129 In addition, as regards any liability incurred by Brink’s as the parent company of Bax Global (China), it must be recalled that, contrary to what is argued by the applicants, the Commission’s option to hold Schenker China liable as the economic successor of Bax Global (China) is not restricted by the possibility that it may also hold its former parent company, Brink’s, to be liable (see, to that effect, judgment in Erste Group Bank and Others v Commission, cited in paragraph 122 above, EU:C:2009:576, paragraph 82).
130 Moreover, it must be stated that paragraph 61 of the judgment in Hoechst v Commission, cited in paragraph 127 above (EU:T:2009:366), in no way precludes those conclusions. Admittedly, in that paragraph, the Court held it was for the legal person managing the undertaking in question at the time when the infringement was committed to answer for that infringement, even if, at the time when the decision finding the infringement was adopted, another company had assumed responsibility for operating the undertaking. Yet it is apparent from the context of that paragraph that the Court there did no more than clarify that a parent company which, at the time when an infringement was committed, controlled the subsidiary directly involved in that infringement and was therefore part of the same undertaking, may be held liable for that infringement even where, at the time when the Commission’s decision is adopted, those two companies are no longer part of the same undertaking.
131 This submission must therefore be rejected.
132 The applicants’ second argument is that it follows from paragraph 109 of the judgment in ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above (EU:T:2009:90), that, in the event of transfer of all or part of economic activities from one legal entity to another, liability for an infringement committed by the initial operator, within the activities concerned, can be attributed to the new operator only where both entities constitute one and the same economic entity for the purposes of application of the competition rules.
133 In that regard, it must be recalled that the situation concerned in the judgment in ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above (EU:T:2009:90), namely that referred to in paragraph 123 above, is not the only situation where an economic successor can be held to be liable. As was stated in paragraphs 121 to 124 above, where a company which has committed an infringement of the competition rules has ceased to exist when the contested decision is adopted, the Commission was entitled to hold its economic successor to be liable, irrespective of whether those two legal entities were part of the same undertaking. In this case, Bax Global (China) had ceased to exist at the time when the contested decision was adopted. Accordingly, the Commission was entitled to hold Schenker China liable as its economic successor.
134 Moreover, and in any event, as regards the application of the judgment in ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above (EU:T:2009:90), it must be observed, that, at the time when the activities of Bax Global (China) were transferred to Schenker China, those two companies belonged to the DB Group. Accordingly, because of the structural links which existed between them when the economic activity was transferred from Bax Global (China) to Schenker China, the Commission was entitled to hold Schenker China liable for the conduct of Bax Global (China).
135 Accordingly, that argument must be rejected.
136 The applicants’ third argument is that the concepts of ‘undertaking’ and ‘liability’ for the purposes of Article 101 TFEU and the question of transfer of liability between various undertakings are legal concepts and the Commission had therefore no discretion in relation to them.
137 As regards that argument, in the first place, it must be observed that it is not apparent from the contested decision that the Commission considered that it had any discretion as regards the concept of an undertaking within the meaning of European Union competition law or as regards a transfer of liability. In recital 755 of the contested decision, the Commission confined itself to applying the case-law and principles referred to in paragraphs 120 to 124 above, according to which, in a situation such as that of the present case, it was entitled to hold liable the economic successor of the company which directly participated in an infringement.
138 As regards recitals 791 and 782 of the contested decision, where the Commission stated that it was not imposing penalties on former parent companies of subsidiaries which participated in the CAF cartel, it is clear that, in that context, the Commission did no more than exercise the discretion available to it to determine the legal entities on which it was to impose a penalty, as the applicants themselves acknowledge. On the other hand, in that context, the Commission took no position on whether, in this case, those former parent companies could have been considered to be part of an undertaking which committed an infringement of Article 101 TFEU or on questions of transfer of liability.
139 Since none of arguments seeking to demonstrate that, in this case, there was no legal basis for imposing a penalty on Schenker China is well founded, the first part of this plea in law must be rejected.
The second part: breach of Article 41 of the Charter of Fundamental Rights and the principle of sound administration, and the third part: breach of the duty to state reasons
140 In these parts of this plea, the applicants’ first argument is that, by omitting to examine diligently and sufficiently whether it could hold Brink’s liable for the conduct of Bax Global (China) and to what extent it was necessary and fair to take action against Schenker China in order to ensure the effective enforcement of the European Union competition rules, the Commission was in breach of Article 41 of the Charter of Fundamental Rights and the principle of sound administration. The applicants’ second argument is that the Commission did no more than make known that it had chosen not to hold Brink’s to be liable, whereas, under Article 296 TFEU, it ought to have stated reasons for the decision not to hold Brink’s, the former parent company of Bax Global (China), liable either solely or jointly and severally. Consequently, the contested decision should be annulled, or, at the least, there should be imposed on Schenker China only that proportion of the fine which it would have had to pay if it had been able to seek recovery from Brink’s as being jointly and severally liable.
141 The Commission disputes those arguments.
The breach of Article 41 of the Charter of Fundamental Rights and the principle of sound administration
142 First, it must be recalled that, according to Article 23(2)(a) of Regulation No 1/2003, the Commission may, by decision, impose fines on undertakings and associations of undertakings where, either intentionally or negligently, they infringe Article 101 TFEU. That provision refers solely to the possibility of imposing penalties on undertakings, but does not define the legal entities on which a fine can be imposed. The Commission therefore has a discretion concerning the choice of legal entities on which it can impose a penalty for an infringement of European Union competition law (see, to that effect, judgment in Erste Group Bank and Others v Commission, cited in paragraph 122 above, EU:C:2009:576, paragraph 82).
143 However, in the exercise of that choice, the Commission is not entirely free. The Commission must have regard to, inter alia, the general principles of EU law and the fundamental rights guaranteed at EU level (see, to that effect, Opinion of Advocate General Kokott in 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, ECR, EU:C:2012:11, point 212).
144 Accordingly, where, in the course of its investigation, the Commission decides not to impose a fine on a particular category of legal entities which might have been part of the undertaking which committed the infringement, the Commission must have due regard to, inter alia, the principle of equal treatment.
145 It follows that not only must the criteria which the Commission establishes, in order to make a distinction between legal entities on which it imposes a fine and those on which it decides not to impose a fine, not be arbitrary, but they must also be applied consistently.
146 The question whether, in this case, the Commission exceeded the limits of its discretion must be examined in the light of those principles and that case-law.
147 First, as regards the applicants’ arguments seeking to challenge the criteria applied by the Commission, it must be observed that, in this case, the Commission decided to hold liable not only the subsidiaries which participated in the CAF cartel, but also the parent companies of those subsidiaries which, at the time when the contested decision was adopted, were part of the same undertaking for the purposes of Article 101 TFEU, in so far as the participation in that cartel could also be attributed to them. On the other hand, as is apparent from recitals 791 and 782 of the contested decision, the Commission decided not to impose fines on the former parent companies of those subsidiaries, irrespective of whether they could also have been held liable for the CAF cartel.
148 Such an approach is within the discretion available to the Commission. As part of that discretion, the Commission can take into consideration the fact that an approach designed to impose penalties on all the legal entities which might be held to be liable for an infringement might add considerably to the work involved in its investigations (see, to that effect, judgment in Erste Group Bank and Others v Commission, cited in paragraph 122 above, EU:C:2009:576, paragraph 82).
149 It is apparent from the contested decision that, in this case, even without the inclusion of the former parent companies of subsidiaries which participated in the AMS, NES, CAF and PSS cartels, the total number of legal entities taking part in the procedure before the Commission was 47. Given how high that number is, the Commission’s decision not also to take action against the former parent companies of those subsidiaries cannot be regarded as arbitrary.
150 In that context, it must also be recalled that, in paragraphs 155 to 167 of its judgment of 11 July 2013 in Team Relocations and Others v Commission (C‑444/11 P, EU:C:2013:464), the Court of Justice has previously had occasion to rule that the Commission did not exceed the limits of its discretion when it decided to impose penalties solely on companies directly involved in the infringement and on their current parent companies which can be held liable for their conduct, and not on their former parent companies.
151 Secondly, as regards how the Commission applied the criteria which it had established, suffice it to state that the applicants offer no argument to demonstrate that those criteria were not applied consistently.
152 Accordingly, the Court must conclude that, by deciding not to impose a penalty on Brink’s, the former parent company of Bax Global (China) which directly participated in the CAF cartel, even though Brink’s could possibly have been held to be liable, the Commission did not exceed the limits of the discretion available to it under Article 23(2)(a) of Regulation No 1/2003.
153 None of the arguments put forward by the applicants is capable of calling into question that conclusion.
154 In the first place, contrary to what is claimed by the applicants, it cannot be inferred from the judgment of 18 July 2013 in Dow Chemical and Others v Commission (C‑499/11 P, ECR, EU:C:2013:482), that, in this case, the Commission was obliged to examine whether it could hold liable Brink’s, as the former parent company of Bax Global (China). Even if that were to be inferred from paragraph 47 of that judgment, in which the Court of Justice held, in essence, that there was a principle that the Commission should impose a fine on all the legal entities which form part of the undertaking that committed the infringement, that paragraph has to be read taking into account its context. In that case, a parent company, which had been held liable by the Commission for the conduct of one of its subsidiaries, claimed that, having regard to the discretion enjoyed by the Commission, the Commission ought to have explained its approach of holding it to be liable. It was in response to that argument that the Court of Justice relied on the principle that, as a company affiliated to the undertaking that infringed Article 101 TFEU, the parent company had to be penalised. However, it cannot be inferred from that judgment that the Commission is prevented from adopting an approach which consists in not taking action against particular categories of legal entities, where such an approach is not arbitrary and enables the Commission to make efficient use of its resources. In paragraph 47 of the judgment in Dow Chemical and Others v Commission (EU:C:2013:482), the Court of Justice expressly recognised that the Commission could choose not to impose a penalty on a parent company provided that such a decision was based on objective reasons.
155 In the second place, the applicants claim that if both they and Brink’s had been held liable, that would have given them economic advantages, since that would have made it easier for them to seek recovery from Schenker China with respect to payment of its proportion of the fine.
156 In that regard, suffice it to state that, even on the assumption that Schenker China and Brink’s could have been held liable jointly and severally for payment of the fine and that such attribution of liability would have conferred an advantage on Schenker China, those circumstances would not have been such as to demonstrate that the Commission exceeded the limits of its discretion. The Commission is to ensure respect for European Union competition law in the interests of the European Union and has only limited resources to achieve that objective. Accordingly, even if the result of an approach which consists in not taking action against all the legal entities on which a fine might possibly be imposed may be that the legal entities on which a fine is imposed are placed in a less favourable position, that does not prevent the Commission from pursuing such an approach where it is based on objective reasons and enables it to make more efficient use of its resources.
157 It follows that, contrary to what is claimed by the applicants, the Commission did not err in this case in deciding not to impose fines on Brink’s as the former parent company of Bax Global (China).
158 Consequently, the second part of the plea, claiming a breach of Article 41 of the Charter of Fundamental Rights and of the principle of sound administration, must be rejected.
The breach of the obligation to state reasons
159 The applicants also claim that the Commission was in breach of its obligation to state reasons under the second paragraph of Article 296 TFEU.
160 First, it must be recalled that the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue 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 it and to enable the competent court to exercise its power of review (judgment of 29 September 2011 in Elf Aquitaine v Commission, C‑521/09 P, ECR, EU:C:2011:620, paragraph 147).
161 Thus, in the context of individual decisions, it is settled case-law that the purpose of the obligation to state the reasons on which an individual decision is based is, in addition to permitting review by the competent courts, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged (see judgment in Elf Aquitaine v Commission, cited in paragraph 160 above, EU:C:2011:620, paragraph 148 and the case-law cited).
162 It is also settled case-law that the requirements to be satisfied by the statement of reasons depend on the circumstances of each 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 direct and individual concern, 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 for a measure meets the requirements of the second paragraph of Article 296 TFEU 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 (see judgment in Elf Aquitaine v Commission, cited in paragraph 160 above, EU:C:2011:620, paragraph 150 and the case-law cited).
163 The question whether the reasons stated in the contested decision are sufficient must be examined in the light of that case-law.
164 In that regard, it is clear, that, in recital 755 of the contested decision, the Commission stated that it was entitled to hold Schenker China liable for the infringement as the economic successor of Bax Global (China). Further, in recitals 791 and 782 of the contested decision, the Commission stated that it had decided not to impose penalties on the former parent companies. It is obvious from the contested decision that that applied to Brink’s as the former parent company of Bax Global (China). Further, it is sufficiently clear from recital 791 of the contested decision and its context that the Commission’s view was that that approach ensured that its investigation was not excessively laborious. First, it is clear from the contested decision that a total of 47 legal entities took part in the procedure before the Commission and that, had the approach been adopted of also imposing penalties on the former parent companies, that would have led to a further increase in that already significant number. Second, in footnote No 802 to recital 791 of the contested decision, the Commission referred to paragraph 335 of the judgment of 14 December 2006 in Raiffeisen Zentralbank Österreich and Others v Commission (T‑259/02 to T‑264/02 and T‑271/02, ECR, EU:T:2006:396), where the Court held that the Commission’s investigations would be made considerably more laborious by the need to verify, in each case where there were successive controllers of an undertaking, to what extent the latter’s acts could be imputed to the former parent company.
165 Accordingly, it must be concluded that the information contained in the contested decision was sufficient both to enable the applicants to understand why the Commission had decided to penalise Schenker China and not to penalise Brink’s and to enable the Court to carry out its review.
166 Consequently, the third part of the third plea and therefore the third plea in its entirety must be rejected, not only as regards the application for annulment of the contested decision, but also as regards the request that the Court should exercise its unlimited jurisdiction.
4. The fourth plea in law: errors in the calculation of the amount of the fine and an infringement of Article 27(1) and (2) of Regulation No 1/2003 and the rights of the defence
167 This plea in law may be divided into two parts, the first, alleging errors in the calculation of the amount of the fine and the second, infringement of Article 27(1) and (2) of Regulation No 1/2003 and also breach of the rights of the defence.
The first part, concerning errors in the calculation of the fine
168 This part of the plea relates to the part of the contested decision where the Commission calculated the amount of the fines imposed on the applicants.
169 In that context, the Commission relied on the general methodology laid down by the 2006 Guidelines. In particular, the Commission considered that, in order to determine the basic amount of the fines, it was appropriate, first, under point 13 of the 2006 Guidelines, to use the value of the sales made by the applicants in the provision of freight forwarding services to customers in the EEA on the trade lanes affected by the AMS, CAF and PSS cartels and, second, to apply a gravity percentage of 16%. The Commission also took the view that the applicants could not rely on any mitigating circumstances.
170 The applicants claim that, in so acting, the Commission imposed on them fines which go beyond the scope and gravity of the AMS, CAF and PSS cartels. In that connection, they put forward four submissions. First, they argue that the Commission did not use the appropriate value of sales. Second, they challenge the gravity percentages applied by the Commission. Third, they claim that the Commission failed to take account of a mitigating circumstance, namely the existence of an unlawful cartel affecting transport services. Fourth, they argue that the Commission infringed the principle of equal treatment.
The submission concerning the value of sales
171 This submission relates to the Commission’s findings, set out in recitals 857 to 890 of the contested decision, that, pursuant to point 13 of the 2006 Guidelines, in order to calculate the basic amount of the fine, the Commission should use the values of the sales made by the applicants in the provision of freight forwarding services to customers in the EEA on the trade lanes affected by the AMS, CAF and PSS cartels.
172 The applicants consider that those findings are vitiated by errors. The Commission disregarded the 2006 Guidelines and infringed Article 23(2) and (3) of Regulation No 1/2003, the principle of proportionality, the principle that the punishment must fit the offence and the principle nulla poena sine culpa. According to the applicants, the Commission also committed errors of assessment.
173 In essence, the applicants argue that, by using the values of the sales made by them in the provision of freight forwarding services to customers in the EEA on the trade lanes affected by the AMS, CAF and PSS cartels, the Commission imposed on them fines which go beyond the scope and gravity of the infringements identified in the contested decision. According to the applicants, the Commission ought not to have used the values of sales made in the provision of freight forwarding services, but should have ensured that the values of sales used reflected the economic harm caused by the AMS, CAF and PSS cartels, instead of relying on objectives of general deterrence. The Commission should have adjusted those values by taking into consideration the existence of an upstream cartel on the transport services market.
174 The Commission disputes those arguments.
175 In that regard, it must be observed that, under Article 49(3) of the Charter of Fundamental Rights, the severity of penalties must not be disproportionate to the infringement and, under Article 23(3) of Regulation No 1/2003, in order to determine the amount of the fine, the Commission must have regard to the gravity and duration of the infringement.
176 As regards the principle of proportionality and the principle that the punishment must fit the offence, those principles require that fines must not be disproportionate to the objectives pursued, that is to say, to ensuring compliance with the European Union competition 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 its gravity. In particular, the principle of proportionality obliges the Commission to set the fine proportionately to the factors taken into account for the purposes of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified (judgment of 27 September 2006 in Jungbunzlauer v Commission, T‑43/02, ECR, EU:T:2006:270, paragraphs 226 to 228).
177 Further, it must be recalled that, in order to assess the gravity of an infringement of European Union competition law, the Commission must take account of a large number of factors, the nature and importance of which vary according to the type of infringement in question 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 (judgments of 7 June 1983 in Musique diffusion française and Others v Commission, 100/80 to 103/80, ECR, EU:C:1983:158, paragraph 121; 3 September 2009 Prym and Prym Consumer v Commission, C‑534/07 P, ECR, EU:C:2009:505, paragraph 96; and KME Germany and Others v Commission, cited in paragraph 37 above, EU:C:2011:816, paragraphs 58 and 59).
178 As regards, more specifically, the volume and value of the goods which are the subject of the infringement, the Court has previously held that, while it is undeniable that the turnover of an undertaking or of a market is, as a factor for assessing the gravity of an infringement, necessarily vague and imperfect, turnover is, notwithstanding that it is approximate, currently considered by the EU legislature, the Commission and the Court as an adequate criterion, in the context of competition law, for assessing the size and economic power of the undertakings concerned (judgment of 6 May 2009 in KME Germany and Others v Commission, T‑127/04, ECR, EU:T:2009:142, paragraph 93).
179 The proportion of the overall turnover which derives from the sale of goods or services which are the subject of the infringement best reflects the economic importance of that infringement.
180 Those principles are reflected in the 2006 Guidelines, which lay down a general method for the calculation of the amount of fines. It is stated in point 6 of the 2006 Guidelines that ‘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 participating in the infringement’.
181 Thus, the 2006 Guidelines provide that, as a first stage, the Commission is to determine the basic amount of the fine. At that stage, pursuant to point 13 of the 2006 Guidelines, the Commission is to identify the value of the sales of the goods or services, made by the undertaking, to which the infringement directly or indirectly relates, in the relevant geographic area within the EEA in the course of a particular year. Next, the Commission is to apply to that value a gravity factor in the form of a given percentage calculated according to the degree of gravity of the infringement and is to multiply that result by the number of years that the undertaking participated in the infringement. In cases of horizontal price-fixing, market-sharing and output-limitation agreements, the Commission is to include an additional amount. As a second stage, the Commission is to take account of aggravating or mitigating circumstances.
182 In adopting the 2006 Guidelines, the Commission imposed a limit on the exercise of its discretion. The Commission therefore cannot, without giving reasons, depart from the methodology laid down in those guidelines under pain of being found, where appropriate, to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (judgment of 28 June 2005 in 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, ECR, EU:C:2005:408, paragraph 211).
183 Nonetheless, point 37 of the 2006 Guidelines permits the Commission to depart from the general methodology laid down by those guidelines, in order to take account of the particularities of a given case or to achieve an adequate level of deterrence.
184 The applicants’ arguments must be examined in the light of those principles and that case-law.
– The sales made to which the AMS, CAF and PSS cartels relate
185 The applicants argue that the AMS, CAF and PSS cartels related only to the AMS, CAF and PSS surcharges and, consequently, the Commission ought to have used only the values of sales made with those surcharges. Further, the Commission should not have included in the values of sales the costs of transport services invoiced by the carriers. Freight forwarders organise the transportation of goods, but the carriers invoice them for their services, including charges such as fuel and security surcharges. The charges and surcharges levied by the carriers, over which the freight forwarders have no control, cannot therefore be regarded as being covered by the AMS, CAF and PSS cartels.
186 The Commission disputes those arguments.
187 In the first place, as regards the arguments concerning the nature of the services at issue, it must be recalled that, under point 13 of the 2006 Guidelines, the Commission is to identify the value of the sales of goods or services to which the infringement directly or indirectly relates.
188 In this case, the value of the sales made in the provision of services to which the AMS, CAF and PSS cartels relate was the value of sales made in the provision of freight forwarding services as a package of services.
189 As was stated in paragraphs 87 to 104 above, there is a specific demand for freight forwarding services as a package of services.
190 Further, it must be observed that the AMS, CAF and PSS cartels affected freight forwarding services as a package of services.
191 As regards the AMS cartel, as stated in paragraph 89 above, the Commission found that (i) all the undertakings which participated in the AMS cartel were freight forwarders and that none of them were merely suppliers of AMS filing services; (ii) those undertakings had not considered such suppliers to be actual or potential competitors; (iii) they had not sought to involve those suppliers in the AMS cartel; and (iv) by means of that cartel, their objective was to limit competition with respect to freight forwarding services as a package of services.
192 On the basis of those findings, the Commission was entitled to hold, without committing an error in law, that the aim of that cartel was not to restrict competition with respect to AMS filing services as individual services, but competition with respect to freight forwarding services as a package of services.
193 None of the arguments put forward by the applicants is such as to call into question that conclusion.
194 First, the applicants’ argument that the AMS filing services were also offered by third parties who were not freight forwarders must be rejected. Admittedly, the fact that third parties who are not freight forwarders offer AMS filing services may demonstrate that there was a demand for individual AMS filing services, but it fails to demonstrate that the cartel between the freight forwarders affected those individual services.
195 The applicants’ second argument is that the reasons stated in the contested decision are not consistent. On the one hand, for the purposes of applying Regulation No 141, the Commission asserted that the freight forwarding services were not directly linked to the supply of air transport services. On the other, for the purposes of assessing the gravity of the infringement and calculating the relevant sales, the Commission insisted that the costs which the freight forwarders had to incur vis-à-vis the carriers were relevant to the freight forwarding activities.
196 This submission must also be rejected.
197 Contrary to what is argued by the applicants, those findings by the Commission are not contradictory. First, even if the subject matter of the AMS cartel was solely the imposition of the AMS surcharge, its aim was to restrict competition between the freight forwarders with respect to freight forwarding services. Second, as stated in paragraphs 72 to 114 above, the freight forwarding services were not exempted under Article 1 of Regulation No 141, since that provision applies only to transport services, and not to services which are linked to transport services.
198 As regards the CAF cartel, considerations analogous to those with respect to the AMS cartel apply.
199 As regards the PSS cartel, suffice it to state that the PSS surcharge did not relate to any particular service, but was designed solely to pass on cost or risk factors to the freight forwarders’ customers.
200 Accordingly, the Commission did not exceed the self-imposed limits in point 13 of the 2006 Guidelines by using the values of sales made by the applicants in the provision of freight forwarding services as a package of services and not solely the values of sales made with the AMS, CAF and PSS surcharges.
201 In the second place, the Court must observe that none of the circumstances referred to by the applicants oblige the Commission to depart from the general methodology laid down by point 13 of 2006 Guidelines, pursuant to point 37 of those guidelines.
202 The applicants argue that they act as mere intermediaries, acting as ‘debt collectors’ with respect to some expenses.
203 In that regard, the Court must observe that, in, inter alia, recitals 65, 878 and 879 of the contested decision, the Commission acknowledged that the freight forwarders were in a position of intermediaries between the carrier and the shipper and could adopt a great variety of business models.
204 Nonetheless, it is clear that, in the situation where a freight forwarder does not pass on the transport costs to its customers, and where its income is limited to a commission paid by the carrier, no problem arises, since only the amount of the commission is reflected in its turnover.
205 As regards the situation where a freight forwarder passes on to its customers the transport costs which it has itself had to pay or will have to pay to third parties, it must be stated that, as is apparent from the Commission’s findings as summarised in paragraph 88 above, from an economic perspective, the role of a freight forwarder is not confined to being a mere intermediary. The freight forwarder transforms the services acquired from third parties and other inputs into integrated freight forwarding services, which enable his customers to save time and money, and which therefore respond to a specific demand that is not met by the individual services which are components of the freight forwarding services. In the light of the foregoing, in that situation, the Commission is entitled to use the value of the freight forwarders’ sales for the purposes of point 13 of the 2006 Guidelines.
206 Further, contrary to what is argued by the applicants, the Commission was not required to deduct the value of transport services.
207 As stated above, those services must be considered to be inputs for the freight forwarding services. Yet there are in all industrial sectors costs inherent in the final product which the manufacturer cannot control but which nevertheless constitute an essential element of its business as a whole. It is not therefore appropriate to deduct the costs of inputs, which are inherent in the prices of the goods and services sold, from the value of sales, even where the cost of inputs constitutes a significant part of the value of sales (see, to that effect, judgments in KME Germany and Others v Commission, cited in paragraph 37 above, EU:C:2011:816, paragraphs 58 to 65, and KME Germany and Others v Commission, cited in paragraph 178 above, EU:T:2009:142, paragraph 91). Admittedly, that case-law concerns a case to which the 2006 Guidelines were not yet applicable. Nonetheless, that case-law can be transposed to those guidelines. The considerations underpinning that case-law relate, generally, to the use of turnover in the calculation of the amount of fines, and indicate that it is an objective criterion which is closely connected with the infringement at issue (see, in that regard, Opinion of Advocate General Wathelet in Guardian Industries and Guardian Europe v Commission, C‑580/12 P, ECR, EU:C:2014:272, point 59).
208 Further, the applicants claim that the reason why the freight forwarders itemise ancillary services such as the AMS filing services connected with freight forwarding services on their invoices is a purely administrative matter, as the Commission itself recognised. That enables them to charge for those services within one overall invoice.
209 In that context, first, it must be observed that the fact that the freight forwarders charged their customers for AMS filing services in no way calls into question the Commission’s finding that there is a specific demand for freight forwarding services as a package of services, because of the possibility thereby to save time and money. On the contrary, those findings are supported by the applicants’ argument that this allows them to send one overall bill to their customers.
210 Second, it is clear that, contrary to what is argued by the applicants, in recital 868 of the contested decision the Commission did not find that the fact that the freight forwarders charged their customers for AMS filing services was a purely administrative matter of no importance. The Commission simply stated in that recital that the fact that, on their bills, the freight forwarders itemised the AMS surcharge separately, instead of including it in the final price of the freight forwarding services, was a purely formal issue, devoid of any economic or legal significance.
211 This submission must also therefore be rejected.
212 Accordingly, contrary to what is argued by the applicants, the nature of freight forwarding services and of the AMS, CAF and PSS cartels did not preclude the Commission from using the overall turnover which the applicants achieved in the provision of those services on the trade lanes concerned, and not deducting therefrom the costs for transport services or other services, supplied by third parties, but which were part of the package of services that made up those freight forwarding services.
– The application of the AMS, CAF and PSS surcharges
213 The applicants argue that the Commission ought not to have taken into account the freight forwarding services which were not subject to the AMS, CAF and PSS surcharges. In cases where those surcharges were not applied, the turnover generated by the shipment cannot be regarded as having been affected by the conduct relating to the AMS, the CAF and PSS.
214 The Commission disputes those arguments.
215 In that regard, it must be recalled that, pursuant to point 13 of the 2006 Guidelines, the Commission is to use the value of sales to which the infringement relates, and the implementation of the infringement is not taken into account. It therefore does not follow from point 13 that only the value of sales resulting from transactions which were actually affected by the unlawful cartels may be taken into consideration in order to calculate the value of sales (see, to that effect, judgment of 16 June 2011 in Putters International v Commission, T‑211/08, ECR, EU:T:2011:289, paragraph 58).
216 Nonetheless, in that context, it must also be recalled that, in accordance with the case-law, the concept of the value of sales referred to in point 13 of the 2006 Guidelines cannot extend to encompassing sales made by the undertaking in question which do not fall, directly or indirectly, within the scope of the alleged cartel (judgment in Team Relocations and Others v Commission, cited in paragraph 150 above, EU:C:2013:464, paragraphs 73 to 78).
217 Yet it is clear that the applicants do no more than claim that the Commission should not have taken into account the freight forwarding services with respect to which the AMS, CAF and PSS surcharges were not applied, but they do not offer any argument from which it can be established that the freight forwarding services which the Commission took into account, namely the turnover on the various trade lanes affected by the AMS, CAF and PSS cartels, did not fall within the scope of those cartels.
218 Further, in the circumstances of this case, the Commission was not obliged to depart from the general methodology provided for by point 13 of the 2006 Guidelines, pursuant to point 37 of those guidelines. The Courts of the European Union have never imposed on the Commission the obligation to establish in every case the individual sales which were affected by the cartel (judgment in Putters International v Commission, cited in paragraph 215 above, EU:T:2011:289, paragraph 60). On the contrary, as is apparent from the case-law of the Court of Justice, if the concept of the value of sales were limited to those with respect to which it is established that they were actually affected by a cartel entered into by a given undertaking, the result would be to minimise artificially the economic importance of that cartel since the mere fact that a limited amount of direct evidence of sales actually affected by the cartel had been found would lead to the imposition of a fine which bore no actual relation to the scope of the cartel in question. Such a reward for secrecy would also adversely affect the objective of the effective investigation and sanctioning of infringements of Article 101 TFEU and, therefore, cannot be permitted (judgment in Team Relocations and Others v Commission, cited in paragraph 150 above, EU:C:2013:464, paragraphs 76 and 77).
219 Consequently, the Court must reject the argument concerning the application of the AMS, CAF and PSS surcharges.
– The existence of a cartel affecting air transport services
220 The applicants argue that the Commission was in breach of the principle that the penalty must fit the offence, the principle of proportionality and the principle nulla poena sine culpa by failing to take account of the fact that the rates for transport services had been inflated by a cartel affecting those services. Consequently, the Commission penalised the effects of one and the same infringement twice, first in relation to the carriers who had committed the infringement and then in relation to those who happened to be their customers. The applicants also claim that the Commission’s finding in recital 884 of the contested decision, that the applicants can bring proceedings against the carriers before the national civil courts is of no relevance.
221 The Commission disputes those arguments.
222 In that regard, first, it must be observed that the 2006 Guidelines contain no rule which expressly provides that the existence of an upstream cartel is to be taken into account for the calculation of fines.
223 The Court must therefore examine whether the existence of a cartel affecting a market upstream of the market affected by the infringement for which a fine was imposed represents a circumstance that obliges the Commission to depart from the general methodology laid down in point 13 of the 2006 Guidelines.
224 In that context, it must be recalled that the use of the criterion of the value of sales as the starting point for the calculation of fines finds its justification in, inter alia, the fact that the part of the overall turnover that derives from the sale of the goods or services which are the subject matter of the infringement best reflects the economic importance of that infringement (see paragraphs 178 and 179 above) and is an objective criterion that can be easily applied.
225 The fact that the air transport services market was affected by a cartel is not such as to invalidate the Commission’s finding that the values of sales made by the applicants on the freight forwarding services market, on the trade lanes affected by the AMS, CAF and PSS cartels, are indeed able to reflect the economic importance of their participation in that infringement. First, those sales represent the turnovers generated by the applicants in the specific market conditions. Second, there is an objective link between the AMS, CAF and PSS cartels and those turnovers which reflect the relative weight of the applicants’ participation.
226 Further, it must be observed that if the approach adopted were that the existence of an unlawful cartel affecting an upstream market would compel the Commission to adjust the value of sales to which an infringement affecting a downstream market relates, the effect would be to introduce an element of uncertainty at the very first stage of the calculation of fines. First, the amount of the deductions to be made would generally be difficult to determine. Second, in order to respect the principle of equal treatment, deductions would have to be made not only in the situation where an unlawful cartel might affect an upstream market, but, more generally, in all circumstances where factors to be considered as contrary to EU law might have a direct or indirect impact on the prices of the goods or services concerned. Third, the result of such an approach would be to create the risk that the basis for the calculation of the amount of a fine would be challenged after the adoption of the contested decision, in situations where factors that might have a direct or indirect impact on the prices of inputs were discovered after that time. The approach advocated by the applicants would therefore be likely to encourage endless, insoluble disputes, including allegations of unequal treatment.
227 As regards the argument concerning an infringement of the principle nulla poena sine culpa, suffice it to state that, since the fines imposed on the applicants were calculated on the basis of the sale prices which they themselves charged their customers, the Commission did not impose on them a penalty for an infringement committed by a third party, but took into account revenue which the applicants themselves generated and for which they have to answer. That argument must therefore also be rejected.
228 In the light of the foregoing, the Court must conclude that the existence of a cartel affecting a market upstream of the market affected by the infringements for which fines were imposed cannot be deemed to be a circumstance that obliges the Commission to depart from the general methodology laid down in point 13 of the 2006 Guidelines.
229 Therefore, the Court must reject the argument relating to the existence of a cartel affecting the transport services market, and there is no need to give a ruling on whether the Commission’s observation in recital 884 of the contested decision, that the applicants can bring proceedings before the national civil courts against the carriers, is relevant in this context. Even if that observation were misconceived, that would not call into question the other findings made by the Commission, the merits of which have been examined above.
– Taking account of the economic harm caused
230 The applicants argue that the Commission failed to take sufficient account of the economic harm caused by the AMS, CAF and PSS cartels. According to the 2006 Guidelines, fines are specifically linked to the presumed economic harm extrapolated from the value of sales to which the infringement related. The Commission should therefore ensure that the turnover used reflects the economic harm. At the stage where the turnover relating to the identified infringement is to be determined, a general deterrent effect should not be taken into consideration, since such an effect can be taken into consideration only at a later stage in the calculation of the fine. In this case, the circumstances that the turnovers linked to the AMS, CAF and PSS systems represent only a negligible part of the amount of the fines imposed and that they represent an even more insignificant part of the turnovers used by the Commission demonstrates that the fines substantially exceeded the theoretical maximum harm and were therefore disproportionate.
231 The Commission disputes those arguments.
232 In that regard, it must be observed, first, that, contrary to what is argued by the applicants, neither point 13 nor any other point of the 2006 Guidelines provides that the value of sales must be limited to reflect the economic harm caused by the infringement.
233 Secondly, the circumstances referred to by the applicants did not oblige the Commission to depart from the general methodology laid down in point 13 of the 2006 Guidelines, pursuant to point 37 of those guidelines.
234 It is admittedly true that, in the calculation of fines, the value of sales should not be given disproportionate importance (judgment in KME Germany and Others v Commission, cited in paragraph 37 above, EU:C:2011:816, paragraph 60). However, in that regard, suffice it to state that the value of sales is only one criterion, among many, which is taken into account by the general methodology laid down by the 2006 Guidelines. Even if the circumstances referred to by the applicants, such as the harm caused or the margin achieved, are of relevance to the calculation of fines, under that methodology, they could be taken into consideration in later stages of that calculation, such as assessing what gravity percentage should be applied to the infringement, whether there are mitigating or aggravating circumstances or even what ability to pay the undertakings concerned have. Therefore, even if, in this case, the Commission were obliged to take into consideration the circumstances referred to by the applicants in the later stages of the determination of the amount of the fine, the Commission was not obliged, for that reason, to depart from point 13 of the 2006 Guidelines, pursuant to point 37 of those guidelines.
235 As regards the relationship between the amount of fines and the amount of the surcharges imposed, it must be observed that, admittedly, fines must be set at a sufficiently high level so that undertakings are deterred from participating in a cartel, notwithstanding the advantages they may derive from it. On the other hand, 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 potentially have been caused by the cartel concerned.
236 In that context, the Court must also reject the applicants’ argument that, at the stage of the determination of the values of sales, the Commission relied on a general objective of deterrence, although it was not entitled to take account of such an objective at that stage in the calculation of fines.
237 In that regard, the Court must observe that, by using the values of sales made by the applicants in the provision of freight forwarding services to customers in the EEA on the trade lanes affected by the AMS, CAF and PSS cartels, the Commission did no more than apply the general methodology laid down in point 13 of the 2006 Guidelines and therefore did not depart from that methodology by relying on a general objective of deterrence.
238 Further, on the assumption that, by their arguments, the applicants seek to claim that, in so far as the values of sales do not reflect the economic harm caused in the form of the surcharges levied, the Commission was obliged to adjust those values, in order to ensure that an objective of general deterrence was not taken into account at that early stage of the calculation of fines, the Court must also reject those arguments.
239 In that context, it must be observed that the value of sales is used as a proxy value for the economic importance of the infringement, not only because it can best reflect the economic importance of that infringement and the relative weight of the undertaking participating in the infringement, but also because it is an objective criterion which is easy to apply. That latter aspect of the value of sales means that the action of the Commission can be more easily foreseen by undertakings and enables them to assess the size of the fine they are liable to incur when they decide to take part in an unlawful cartel. Use of the criterion of the value of sales in point 13 of the 2006 Guidelines therefore pursues, inter alia, an objective of general deterrence. Yet, contrary to what is suggested by the applicants, there is nothing to prevent the Commission, in performing the mission conferred on it by the Treaty to supervise compliance with European Union competition law (judgments in Musique Diffusion française and Others v Commission, cited in paragraph 177 above, EU:C:1983:158, paragraph 105, and Dansk Rørindustri and Others v Commission, cited in paragraph 182 above, EU:C:2005:408, paragraph 170), from pursuing an objective of general prevention, when it determines the general methodology for the calculation of fines.
240 Accordingly, the arguments that the Commission took insufficient account of the economic harm caused by the AMS, CAF and PSS cartels must also be rejected.
– The competitiveness factors affected
241 The applicants also argue that, because the Commission used the values of sales made in the provision of freight forwarding services, it imposed penalties on them as if the aim of the AMS, CAF and PSS cartels had been to fix the final price of the freight forwarding services or to cover all competitiveness factors in the freight forwarding sector.
242 The Commission disputes that argument.
243 In that regard, it must be recalled that, as stated in paragraphs 215 to 217 above, the Commission was entitled to use, as the starting point for the calculation of the fine, the sales falling within the scope of that cartel, irrespective of the gravity of that infringement.
244 Further, it must be borne in mind that, 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.
245 In the light of the foregoing, it cannot be inferred from the fact that the Commission used the values of sales made in the provision of the freight forwarding services affected by the AMS, CAF and PSS cartels as the starting point for the calculation of fines imposed on the applicants that the Commission treated those cartels as cartels designed to fix the final price of the freight forwarding services or to cover all competitiveness factors.
246 Consequently, that argument must be rejected.
– The errors of assessment
247 In so far as the applicants claim that the Commission committed errors of assessment, they do no more than refer to arguments which have already been examined and rejected above. Consequently, this argument must also be rejected.
248 Accordingly, the Court must conclude that none of the arguments put forward by the applicants is such as to demonstrate that, by using the values of sales made in the provision of the freight forwarding services affected by the AMS, CAF and PSS cartels, the Commission disregarded the 2006 Guidelines, infringed Article 23(2) and (3) of Regulation No 1/2003, was in breach of the principle of proportionality, the principle that the penalty must fit the offence or the principle nulla poena sine culpa or committed errors of assessment.
249 It follows that the Court must reject in its entirety the submission concerning the use, by the Commission, of the values of sales made by the applicants in the provision of freight forwarding services to customers in the EEA on the trade lanes affected by the AMS, CAF and PSS cartels.
The submission concerning the degree of gravity
250 In their reply, the applicants challenge the Commission’s conclusion in recital 945 of the contested decision that, for the AMS, CAF and PSS cartels, gravity percentages of 16% were appropriate.
251 In recitals 891 to 947 of the contested decision, the Commission set out the reasons why those gravity percentages were appropriate. In that context, the Commission referred to, inter alia, the fact that the cartels at issue had it as their object to fix, directly or indirectly, prices or other trading conditions. In that regard, the Commission stated that the undertakings agreed on the introduction (AMS, CAF, PSS), level (CAF) or principles of setting (AMS) a number of surcharges, and the timing of their introduction (CAF, PSS) and the fixing of trading conditions (CAF), and exchanged sensitive information on prices (AMS, CAF, PSS). The Commission also took into consideration the circumstances that the AMS, CAF and PSS cartels each covered the entire EEA, that they had been partially implemented and that their implementation had been monitored.
252 The applicants consider that the gravity rates of 16% chosen by the Commission do not correctly reflect the gravity of the AMS, CAF and PSS cartels.
253 The Commission disputes those arguments.
254 In that regard, first, it must be observed that the applicants offer no argument specifically challenging the findings of the Commission pertaining to the degree of gravity as set out in recitals 891 to 947 of the contested decision.
255 Secondly, it is clear that even if the applicants’ arguments concerning the use of the values of sales were also taken into consideration as arguments concerning the gravity percentages, those arguments would fail to demonstrate any error in the findings of the Commission with respect to those percentages.
256 First, it must be observed that the AMS, CAF and PSS cartels constitute horizontal cartels relating to a price element of freight forwarding services and must therefore be regarded as serious restrictions on competition.
257 Further, it must be noted that it is stated in point 23 of the 2006 Guidelines that, with respect to horizontal price-fixing agreements, the proportion of sales taken into account by the Commission will generally be set at the higher end of the scale, that is up to 30%.
258 Moreover, having regard to the nature of the services concerned, the fact that the AMS, CAF and PSS cartels related only to the AMS, CAF and PSS surcharges does not permit the inference that the gravity percentages of 16% were not appropriate. As the Commission explained in recital 869 of the contested decision, and as is confirmed by the evidence referred to therein, the concerted action with respect to the passing on of cost and risk factors by means of the imposition of surcharges was capable of having a not insignificant impact on the conduct of the freight forwarders and on the structure of the market.
259 For the same reasons, the Court must reject the argument concerning the relationship between the theoretical maximum turnovers linked to the AMS, CAF and PSS systems, on the one hand, and the amount of the fines imposed and the turnovers used by the Commission, on the other.
260 Last, as regards the implementation of the cartels, it is clear that the applicants do not challenge the Commission’s finding in recital 902 of the contested decision that the cartels were implemented at least in part and that their implementation was monitored.
261 In the light of the foregoing, the decision to fix the gravity percentages at 16% cannot be regarded as inappropriate.
262 Consequently, the Court must also reject the submission concerning the gravity percentages of 16% set by the Commission, there being no need to give a ruling on whether that submission is admissible notwithstanding that the applicants, first, claimed that those percentages were inappropriate only at the stage of their reply and, second, failed to identify the findings of the Commission concerning the gravity percentages which they sought to challenge.
The submission concerning the existence of a mitigating circumstance
263 The applicants also claim that the Commission ought to have taken the existence of an upstream cartel and its impact on transportation costs into account as a mitigating circumstance. The Commission should also have undertaken further investigations in that regard and it therefore was in breach of the principle of sound administration.
264 The Commission disputes those arguments.
265 In that regard, it must be recalled that point 29 of the 2006 Guidelines sets out a non-exhaustive list of the mitigating circumstances which may lead, subject to certain conditions, to a reduction in the basic amount of the fine.
266 Where an infringement has been committed by several undertakings, the relative gravity of the participation of each of them must be examined in order to determine whether aggravating or mitigating circumstances exist in relation to them (judgment of 25 October 2011 in Aragonesas Industrias y Energía v Commission, T‑348/08, ECR, EU:T:2011:621, paragraph 277).
267 The Court must however observe that it is not possible to link the existence of a cartel affecting an upstream market to one of the mitigating circumstances expressly mentioned in point 29 of the 2006 Guidelines.
268 In addition, even if the list set out in point 29 of the 2006 Guidelines is not exhaustive, it is clear that the existence of a cartel affecting the transport services market is an external factor which cannot diminish the relative gravity of the participation of the applicants in the AMS, CAF and PSS cartels.
269 Moreover, in so far as the applicants argue that there is a causal link between the surcharges which the freight forwarders charged to their customers and those imposed by the carriers, suffice it to state that such an argument is incapable of justifying an unlawful cartel between the freight forwarders the object of which was that they should not compete with one another with respect to the costs arising from the AMS filing services, the currency adjustment or an increase in transport prices during peak periods, but that they should pass on those surcharges to their customers.
270 Accordingly, in this case, the existence of a cartel affecting transport services cannot be considered to be a mitigating circumstance.
271 In that context, it must also be recalled that the Court has previously had occasion to examine and reject a comparable argument (judgment of 14 May 2014 in Reagens v Commission, T‑30/10, EU:T:2014:253, paragraph 289).
272 In the light of the foregoing, the Court must reject the submission that the Commission failed to take account of a mitigating circumstance and was in breach of the principle of sound administration.
The submission concerning an infringement of the principle of equal treatment
273 The applicants argue that the Commission infringed the principle of equal treatment by following in this case a methodology other than that followed in the case COMP/39258 — Airfreight (‘the Airfreight case’). In the latter case, the Commission set the amount of the fines imposed on carriers solely on the basis of the turnovers generated by the fuel and security overcharging. The relationship between the overcharge caused and the fines imposed in this case is a multiple of that in the Airfreight case.
274 In that regard, first, it must be recalled that the principle of equal treatment constitutes a general principle of law which the Commission must respect in a procedure brought under Article 101 TFEU and which prevents comparable situations from being treated differently and different situations from being treated in the same way, unless such difference in treatment is objectively justified (judgment of 29 June 2012 in GDF Suez v Commission, T‑370/09, ECR, EU:T:2012:333, paragraph 386).
275 Secondly, as regards whether the Commission treated a comparable situation differently, first, it must be noted that the Commission’s practice in previous decisions does not serve as a legal framework for the fines imposed in competition matters and that decisions in other cases can give only an indication for the purpose of determining whether there is discrimination, when the facts of the various cases are not identical (judgment of 21 September 2006 in JCB Service v Commission, C‑167/04 P, ECR, EU:C:2006:594, paragraphs 201 and 205).
276 That is even more true of this case, where the matter at issue, namely the determination of the value of sales used as the starting point for the calculation of fines, is the subject of an express rule in point 13 of the 2006 Guidelines. In such circumstances, the Court must examine a complaint of breach of the principle of equal treatment in the light of what is stated in point 13, which the Commission adopted in order to improve the consistency of its position from one case to another. Yet it is clear from the foregoing that, first, the Commission complied with the general methodology laid down by point 13 and, second, in the circumstances of this case, was not obliged to depart from that methodology.
277 Accordingly, even if the applicants claim that the Commission followed a different methodology in the Airfreight case were to be correct, that would fail to demonstrate that, in this case, the Commission infringed the principle of equal treatment. If the claim was correct, that would have one of two consequences: either, unlike the circumstances in this case, there were particularities in the Airfreight case which justified the Commission departing from the general methodology laid down in point 13 of the 2006 Guidelines, or the Commission failed to comply with those guidelines in the Airfreight case. On either of those two situations, the applicants would not be entitled to ask to be treated in this case in the same way as the parties in the Airfreight case.
278 Third, as regards the comparison of the relationship between the harm caused and the fines imposed, in this case and in the Airfreight case, it must be recalled that the comparability of two situations must be assessed in the light of, inter alia, the subject matter and purpose of the legislative acts at issue (see, to that effect, judgment of 16 December 2008 in Arcelor Atlantique and Lorraine and Others, C‑127/07, ECR, EU:C:2008:728, paragraph 26). Yet since no rule of EU law requires the amount of the fine to reflect the damage actually caused, the comparison advocated by the applicants is of no relevance.
279 Consequently, the submission concerning a breach of the principle of equal treatment must also be rejected.
Conclusion
280 Therefore, in so far as this part of the plea in law seeks the annulment of the fines imposed in Article 2(2)(g), Article (3)(a) and (b) and Article (4)(h) of the contested decision, the Court must reject this part of the plea.
281 This part of the plea must also be rejected in so far as it is submitted in support of the request that the Court should exercise its unlimited jurisdiction.
282 Examination of this part of the plea has not only failed to detect any errors but has also failed to detect the use of any inappropriate factors in the calculation of fines.
283 In particular, having regard to the considerations set out in paragraphs 171 to 212 and 220 to 248 above, it is clear that neither (i) the approach envisaged by the applicants of taking into account solely turnovers achieved with the AMS, CAF and PSS surcharges, nor (ii) the approach whereby the costs of transport services are deducted from the values of sales used, nor (iii) the approach whereby those values of sales are adjusted because of the existence of a cartel affecting the transport services market, can be considered to be appropriate, since those approaches fail adequately to reflect the economic importance of the participation of the applicants in those cartels, which affected freight forwarding services as a package of services.
284 In that context, it must also be observed that, even though it is conceivable that low profit margins may be indicative of an undertaking’s reduced ability to pay notwithstanding the size of its turnover, no argument has been put forward in this case to permit the inference that the fines imposed were excessive taking into consideration the applicants’ ability to pay.
285 Further, for the reasons set out in paragraphs 213 to 219 above, nor can the approach to the effect that only the sales with respect to which the AMS, CAF and PSS surcharges were in fact charged should be taken into account be considered to be appropriate.
286 Consequently, the first part of the fourth plea in law must be rejected.
The second part of the fourth plea in law: infringement of Article 27 of Regulation No 1/2003 and breach of the rights of the defence
287 This part of the fourth plea concerns the statement of reasons in recitals 887 and 888 of the contested decision, where the Commission set out the reasons why the applicants should not be given access to the file in the Airfreight case. In that context, the Commission stated that the applicants were not involved in the Airfreight case and that, accordingly, they could not have access to the file, either pursuant to its Notice on the rules for access to the Commission file in cases pursuant to Articles [101 TFEU] and [102 TFEU], Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004 (OJ 2005 C 325, p. 7), or under Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 TFEU] and [102 TFEU] (OJ 2004 L 123, p. 18). Further, the Commission held that, in any event, none of the documents contained in the Airfreight case file was relevant with respect to the liability of the freight forwarders in the present case.
288 The applicants maintain that the Commission infringed Article 27(1) of Regulation No 1/2003 and infringed their rights of defence. The Commission ought to have allowed them to examine the relevant information in the Airfreight case, which was closely linked to this case. Without adequate access to the file, the applicants were not in a position fully to exercise their rights of defence.
289 The Commission disputes those arguments.
290 In that regard, first, it must be recalled that, under Article 27(1) of Regulation No°1/2003, before taking decisions as provided for in Articles 7, 8 and 23 and Article 24(2) of that regulation, the Commission is to give the undertakings which are the subject of the proceedings conducted by it the opportunity of being heard on the matters to which the Commission has taken objection. The Commission is to base its decisions only on objections on which the parties concerned have been able to comment.
291 Article 27(2) of Regulation No 1/2003 provides that the rights of defence of the parties concerned are to be fully respected in the proceedings. Those parties are to be entitled to have access to the Commission’s file, subject to the legitimate interest of undertakings in the protection of their business secrets.
292 Pursuant to Article 15 of Regulation No 773/2004, upon request, the Commission is to grant access to the file to the parties to whom it has addressed a statement of objections and access is to be granted after the notification of the statement of objections.
293 It follows from those provisions that the Commission must give to the undertaking concerned the opportunity to examine all the documents in the investigation file that might be relevant for its defence. Those documents include both incriminating and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved (judgment of 1 July 2010 in Knauf Gips v Commission, C‑407/08 P, ECR, EU:C:2010:389, paragraph 22).
294 As regards failure to disclose exculpatory documents, it is settled case-law that the undertaking concerned need establish only that the non-disclosure was able to influence, to its detriment, the course of the procedure and the content of the Commission’s decision. It is therefore sufficient for the undertaking to show that it would have been able to use such documents for its defence, in the sense that, if it had been able to rely on them during the administrative procedure, it would have been able to invoke evidence which was not consistent with the inferences made at that stage by the Commission and therefore could have had an influence, in any way at all, on the assessments made by the Commission in any decision, at least as regards the gravity and duration of the conduct in which the undertaking was found to have engaged and, accordingly, the level of the fine (judgment in Knauf Gips v Commission, cited in paragraph 294 above, EU:C:2010:389, paragraph 23).
295 It follows that the applicants must not only establish that they did not have access to the documents contained in the Airfreight case file, but also that they could have used them for their defence. They cannot validly plead a failure to disclose documents that are not relevant.
296 The applicants argue that, on the basis of the relevant parts of the Airfreight case file, they would have been able to provide an estimate of the impact on their turnover of the cartel affecting air freight services. Thus, the applicants would have been able to show that the Commission’s decision to take an inflated turnover into account was inappropriate and disproportionate.
297 As stated in paragraphs 220 to 229 and 263 to 272 above, the existence of a cartel affecting air transport services was not capable of having an impact on the turnovers used by the Commission and could not be taken into account as a mitigating circumstance. Further, as stated in paragraphs 273 to 279 above, the applicants cannot base a complaint of an infringement of the principle of equal treatment on the conduct of the Commission in the Airfreight case.
298 In that context, the Court must also reject the applicants’ argument that the Commission’s decision to refuse them access to the file without further investigation is inconsistent ‘with the holistic position of Union law’. That argument fails to invalidate the conclusion that the content of the Airfreight case file could have had no influence on the assessments made by the Commission in the contested decision. Further, in so far as, in that context, the applicants refer to the judgment of 22 May 2012 in EnBW Energie Baden-Württemberg v Commission (T‑344/08, ECR, EU:T:2012:242), suffice it to state, on the one hand, that that judgment concerned access to the file under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), and not the provisions mentioned in paragraphs 290 to 292 above, and, on the other, that that judgment was set aside by the Court of Justice (judgment of 27 February 2014 in Commission v EnBW, C‑365/12 P, ECR, EU:C:2014:112).
299 The applicants put forward no other argument capable of calling into question those findings or demonstrating that the content of the Airfreight case file could have influenced some other aspect of the assessments made by the Commission in the contested decision.
300 Consequently, the Court must also reject this part of the plea and, therefore, the fourth plea in law in its entirety, not only with respect to the application for annulment, but also with respect to the request that the Court exercise its unlimited jurisdiction.
301 On the same grounds, the Court must reject the request that it adopt measures of organisation of procedure to obtain the production of the parts of the Airfreight case file that contain quantitative evidence with respect to surcharges applied by the carriers towards freight forwarders.
5. The fifth plea in law: infringement of Article 23(2) of Regulation No 1/2003 and breach of the principle of equal treatment, failure to comply with the 2006 Leniency Notice and error of assessment
302 This plea in law relates to the application of the 2006 Leniency Notice. It can be divided into two parts. By the first part, in essence, the applicants claim that, by using different criteria for the assessment of DP’s immunity application and the application made by the other undertakings for immunity and reduction of fines, the Commission infringed the principle of equal treatment and committed errors of assessment. The second part concerns a failure to comply with the third paragraph of point 26 of the 2006 Leniency Notice.
303 First, it must be borne in mind that, by the adoption of the 2006 Leniency Notice, the Commission created legitimate expectations, as indeed the Commission recognised in point 38 of that notice. In view of the legitimate expectation which undertakings intending to cooperate with the Commission are entitled to derive from that notice, the Commission is therefore obliged to adhere to it. Accordingly, were the Commission not to have complied with the rules of conduct laid down by that notice, the Commission would have been in breach of the principle of the protection of legitimate expectations (see, to that effect, judgments of 18 June 2008 in Hoechst v Commission, T‑410/03, ECR, EU:T:2008:211, paragraph 510, and 13 July 2011 Kone and Others v Commission, T‑151/07, ECR, EU:T:2011:365, paragraph 127).
The first part of the plea: breach of the principle of equal treatment and error of assessment
304 In recitals 1026 to 1103 of the contested decision, the Commission granted DP immunity from a fine with respect to the AMS, CAF and PSS cartels. In that regard, the Commission stated that, at the time when it had received DP’s immunity application, having regard to the information which DP had submitted to it, it was entitled to grant DP, in the letter of 24 September 2007, conditional immunity with respect to an alleged cartel among the private suppliers of international freight forwarding services aimed at fixing or passing on to their customers various fees and surcharges, in particular [confidential]. At the end of the administrative procedure, the Commission held that DP had cooperated satisfactorily and that the alleged cartel with respect to which it had granted DP conditional immunity ‘fully covered all infringements dealt with in this decision’. Further, the Commission assessed the applications made by other undertakings for immunity and reduction of fines in connection with those cartels.
305 The applicants claim that those findings are vitiated by errors. The Commission treated DP more favourably than the other undertakings which submitted applications for immunity and reduction of fines, since the basis of assessment of their applications differed from that applied to DP’s immunity application. Although the Commission found that there were four infringements, the Commission granted general conditional immunity covering the air freight forwarding sector to DP, but failed to examine whether the evidence produced by that undertaking had covered all the conduct at issue. The Commission acted differently with respect to the applications for reduction of fines made by other undertakings, which it assessed with reference to each infringement taken separately. The applicants claim that, if all the applications for immunity and reduction of fines had been assessed by taking account of the freight forwarding sector as a whole they would have benefitted from more favourable treatment.
306 This part of the plea may be broken down into four submissions. First, the applicants argue that the Commission should not have granted DP immunity with respect to the PSS and CAF cartels. Second, they claim that the Commission treated DP more favourably than other undertakings. Third, they argue that the Commission’s approach is likely to block access to immunity. Fourth, the applicants claim that the Commission’s approach means that the application of the 2006 Leniency Notice can be less easily foreseen. Those parts of the plea are not confined to claiming that there was an unlawful act which benefited another party. The applicants argue that, if the Commission had not committed those errors, they would have qualified for more favourable treatment under the 2006 Leniency Notice.
The submission that the Commission should not have granted immunity to DP
307 The applicants argue that, in this case, the Commission should not have granted DP immunity from fines with respect to the PSS and CAF cartels. According to the applicants, the conditions laid down in point 8(a) and point 9 of the 2006 Leniency Notice were not met, since the information and evidence submitted by DP did not enable the Commission to carry out targeted inspections in connection with those cartels.
308 In that regard, first, it must be recalled that it follows from point 8(a) of the 2006 Leniency Notice that the Commission is to grant conditional immunity to an undertaking which discloses its participation in an alleged cartel if that undertaking is the first to submit information and evidence which will enable the Commission to carry out a targeted inspection in connection with that cartel.
309 Point 9 of the 2006 Leniency Notice is worded as follows:
‘For the Commission to be able to carry out a targeted inspection within the meaning of point (8)(a), the undertaking must provide the Commission with the information and evidence listed below, to the extent that this, in the Commission’s view, would not jeopardise the inspections:
(a) A corporate statement … which includes, in so far as it is known to the applicant at the time of the submission:
– A detailed description of the alleged cartel arrangement, including for instance its aims, activities and functioning; the product or service concerned, the geographic scope, the duration of and the estimated market volumes affected by the alleged cartel; the specific dates, locations, content of and participants in alleged cartel contacts, and all relevant explanations in connection with the pieces of evidence provided in support of the application;
– The name and address of the legal entity submitting the immunity application as well as the names and addresses of all the other undertakings that participate(d) in the alleged cartel;
– The names, positions, office locations and, where necessary, home addresses of all individuals who, to the applicant’s knowledge, are or have been involved in the alleged cartel, including those individuals which have been involved on the applicant’s behalf;
– Information on which other competition authorities, inside or outside the EU, have been approached or are intended to be approached in relation to the alleged cartel; and
(b) Other evidence relating to the alleged cartel in possession of the applicant or available to it at the time of the submission, including in particular any evidence contemporaneous to the infringement.’
310 Pursuant to point 18 of the 2006 Leniency Notice, once the Commission has received the information and evidence submitted by the undertaking and has verified that the conditions set out in point 8(a) were satisfied, the Commission is to grant the undertaking conditional immunity from fines in writing.
311 It follows from point 22 of that notice that if, at the end of the administrative procedure, an undertaking meets the conditions set out in point 12 thereof, one of those conditions being that the undertaking cooperates genuinely, fully, continuously and expeditiously with the Commission, the Commission is to grant it final immunity in the decision bringing the administrative procedure to an end.
312 Having regard to the structure of those provisions, the Court must examine whether, pursuant to point 8(a) and points 9 and 18 of the 2006 Leniency Notice, the Commission was entitled to grant DP conditional immunity with respect to an alleged cartel of the scale described in paragraph 304 above, and then examine whether, at the end of the administrative procedure, the Commission was entitled to grant DP final immunity with respect to the CAF and PSS cartels.
313 Pursuant to point 8(a) of the 2006 Leniency Notice, DP had to be the first undertaking to submit information and evidence enabling the Commission to carry out a targeted inspection in connection with an alleged cartel covering the CAF and PSS cartels.
314 In that context, first, it must be observed it is not sufficient for the Court to find that, in the letter of 24 September 2007, the Commission granted DP conditional immunity with respect to such an alleged cartel and that the conditions for the withdrawal of that decision were not met, as contended by the Commission.
315 First, irrespective of whether that decision to grant conditional immunity is binding on the Commission vis-à-vis DP, there is nothing to prevent the applicants arguing that the conditions for the adoption of such a decision were not met. It is therefore for the Court to examine whether, as asserted by the Commission, at the time of that letter, the information and evidence submitted by DP could reasonably have enabled the Commission to carry out a targeted inspection in connection with an alleged cartel covering, inter alia, the CAF and PSS cartels. Second, contrary to what is argued by the Commission, the discretion the Commission invokes does not preclude the Court from assessing the sufficiency of the information and evidence submitted by DP. In that regard, it must be recalled that, as regards the choice of factors taken into account in the application of the criteria set out in the 2006 Leniency Notice and the assessment of those factors, it is for the Court to carry out its review of legality without using the Commission’s margin of discretion as a basis for dispensing with conducting an in-depth review of the law and of the facts (judgment of 24 October 2013 in Kone and Others v Commission, C‑510/11 P, EU:C:2013:696, paragraphs 24 and 54).
316 That is why the Court asked the Commission to submit copies of the statements and evidence that DP submitted to it before the adoption of the decision to grant conditional immunity on 24 September 2007 (see paragraph 19 above).
317 Second, it must be recalled that, in order to be able to adopt a decision ordering inspections under Article 20(4) of Regulation No 1/2003, the Commission must identify the facts which are such as to justify inspections (see, by analogy, judgment of 26 June 1980 in National Panasonic v Commission, 136/79, ECR, EU:C:1980:169, paragraphs 26 and 27).
318 In order to justify inspections, it is not necessary that the documents brought to the attention of the Commission be such as to establish beyond reasonable doubt the existence of the infringement identified in the contested decision. That standard of evidence is required for decisions of the Commission in which it finds that there is an infringement and imposes fines. On the other hand, for the Commission to be able to adopt a decision ordering an inspection under Article 20(4) of Regulation No 1/2003, it is sufficient that it is in possession of information and evidence providing reasonable grounds for suspecting the existence of an infringement (see judgment of 8 March 2007 in France Télécom v Commission, T‑340/04, ECR, EU:T:2007:81, paragraph 53 and the case-law cited).
319 Particularly in the area of unlawful cartels, the various indicia must not be assessed separately but as a whole, and can be mutually corroborative (see, by analogy, judgments of 14 July 1972 in Imperial Chemical Industries v Commission, 48/69, ECR, EU:C:1972:70, paragraph 68, and 8 July 2004 JFE Engineering and Others v Commission, T‑67/00, T‑68/00, T‑71/00 and T‑78/00, ECR, EU:T:2004:221, paragraph 275).
320 As regards the information and evidence submitted by DP, it must first be observed that, in its statements, DP stated [confidential]. DP also [confidential]. Further, DP stated [confidential]. Further, DP added that [confidential].
321 Second, DP submitted information and evidence which was such as to create an initial suspicion of conduct by the freight forwarders affecting a host of competitiveness factors with respect to freight forwarding services. In particular, DP reported alleged anticompetitive conduct concerning war risk surcharges and similar surcharges [confidential].
322 The Court considers that, taken together, that information and evidence was not only capable of creating an initial suspicion of anticompetitive conduct affecting a host of different competitiveness factors among freight forwarders, but also enabled the Commission to suspect that, within the scope of the alleged cartel described by DP, beyond the specific examples already reported by DP, freight forwarders had also entered into agreements concerning competitiveness factors which were analogous to or similar to those mentioned in paragraph 320 above.
323 In that context, the Court must take note in particular of [confidential].
324 That initial suspicion was reinforced by, in particular, the information from DP in its statement [confidential], that [confidential].
325 It was also reinforced by information from DP that [confidential].
326 Accordingly, at the stage in the proceedings at which the Commission received information and evidence from DP, it was entitled to suspect that, within the scope indicated by DP, namely the markets in freight forwarding services described in paragraph 304 above, freight forwarders had acted with the aim of restricting competition between them with respect to a host of competitiveness factors, including those listed in paragraph 321 above.
327 Further, DP also submitted the names of the freight forwarders participating in the alleged cartel.
328 In the light of the foregoing, the Commission did not err in holding that the information that DP submitted to it before 24 September 2007 enabled it to carry out a targeted inspection in connection with an alleged cartel among the private suppliers of international freight forwarding services aimed at fixing or passing on to their customers various fees and surcharges in the territories described in paragraph 304.
329 Consequently, the Commission did not err in granting conditional immunity to DP with respect to such an alleged cartel pursuant to point 8(a) and points 9 and 18 of the 2006 Leniency Notice.
330 As regards the Commission’s decision to grant final immunity to DP at the end of the administrative procedure, it must be observed that, after having found, in recital 1029 of the contested decision, that the NES, AMS, CAF and PSS cartels constituted separate, single and continuous infringements, the Commission held, in recital 1031 of that decision, that the alleged cartel with respect to which it had granted DP conditional immunity ‘fully covered all infringements dealt with in this decision’.
331 In so doing, the Commission followed the procedure laid down in point 22 of the 2006 Leniency Notice.
332 In the light of the foregoing, it must be concluded that, in this case, the Commission did not infringe the conditions laid down in point 8(a) and points 9, 18 and 22 of the 2006 Leniency Notice.
333 None of the arguments put forward by the applicants is such as to call in question that conclusion.
334 The applicants’ first argument is that, on the basis of the information and evidence submitted by DP, the Commission was not capable of carrying out a targeted inspection in connection with the CAF and PSS cartels, since DP did not submit any information and evidence specifically relating to those cartels.
335 In that regard, it must be recalled that, at the time when the Commission receives an application for immunity under point 8(a), it does not yet have any knowledge of the cartel concerned. Accordingly, as is stated in footnote No 1 to point 8(a) of the 2006 Leniency Notice, the Commission must carry out an ex ante assessment of the application for immunity, based exclusively on the type and quality of information submitted by the undertaking.
336 The 2006 Leniency Notice therefore does not preclude the Commission granting conditional immunity to an undertaking even where the information provided by that undertaking does not yet enable the Commission to form a conception of the nature and scope of the alleged cartel which is detailed and specific.
337 First, although point 9(a) of the 2006 Leniency Notice requires that the undertaking seeking immunity must submit to the Commission a ‘detailed description’ of, inter alia, the alleged cartel and its geographic scope together with ‘specific information’ on its content, that obligation applies only in so far as the undertaking has such knowledge at the time of its application. Second, it must be recalled that the collaboration of an undertaking in the detection of a cartel of which the Commission had no prior knowledge has an intrinsic value which can justify immunity from fines. The objective of point 8(a) and point 18 of the 2006 Leniency Notice is to facilitate the detection of infringements which are not known to the Commission, and which would remain secret in the absence of evidence disclosed by the undertaking applying for immunity (see, to that effect, judgment in Kone and Others v Commission, cited in paragraph 316 above, EU:C:2013:696, paragraph 67).
338 Accordingly, contrary to what is argued by the applicants, point 8(a) and points 9 and 18 of the 2006 Leniency Notice do not require that the material submitted by an undertaking should constitute information and evidence pertaining specifically to the infringements which are identified by the Commission at the end of the administrative procedure. It is sufficient that the material enabled the Commission to carry out a targeted inspection in connection with an alleged infringement which covers the infringement(s) that the Commission finds to exist at the end of that procedure.
339 The applicants’ second argument, as regards the CAF cartel, is that, in so far as, in its statement [confidential], DP submitted evidence concerning a surcharge relating to a currency adjustment, that was information and evidence which did not relate to the CAF cartel, but to discussions [confidential] whose purpose was the introduction of a currency adjustment surcharge [confidential].
340 In that regard, suffice it to recall, first, that point 8(a) and points 9 and 18 of the 2006 Leniency Notice do not require that the material submitted by an undertaking should constitute information and evidence relating specifically to the infringements which the Commission finds to exist at the end of the administrative procedure and, second, that it is apparent from the considerations set out in paragraphs 308 to 328 above that, at the stage of the procedure when the Commission granted DP conditional immunity, the information and evidence submitted by DP justified an initial suspicion on the part of the Commission concerning alleged anticompetitive conduct covering, inter alia, the CAF cartel. Accordingly, the fact that the material which DP had submitted in its statement of [confidential] did not specifically refer to the CAF cartel did not preclude the Commission from granting DP conditional immunity with respect to an alleged cartel the scope of which covered, inter alia, the CAF cartel.
341 In so far as the applicants’ third argument is that, on the basis of the information and evidence submitted by DP, the Commission was not able to carry out a targeted inspection in relation to the PSS cartel, the Court must refer to the considerations set out in paragraph 340 above.
342 Further, and in any event, it must be observed that, contrary to what is argued by the applicants, some of the evidence that DP had submitted before the Commission adopted its decision to grant conditional immunity was such as to justify an initial suspicion concerning specifically the PSS cartel.
343 First, the Court must take note of an internal email of mail of one of the freight forwarders involved (Annex G.10), the subject of which was ‘How the [freight forwarder] competitors handle the PSS’ and sets out the conduct envisaged by them. The Court considers that some of the wording in that email, namely the reference to ‘friendly competitors’, and the content of what is said of the conduct envisaged by freight forwarder competitors, such as ‘A. Expeditors — … The customers complained why Expeditors was always the first one to impose the increase, the Sales Director of Expeditors … said’ and ‘D. Exel — The friendly competitor also tries to pass through the rate increase on the customers cautiously …’, encourage the suspicion that that information came from competing freight forwarders themselves and that there had therefore been contact between those freight forwarders with respect to the PSS.
344 Second, mention must be made of an internal email of the same freight forwarder (Annex G.12), in which an employee of that company, after reporting a ‘further follow up’ on prices of the freight forwarder Expeditors, coming from one of its employees, copied the content of an email which he had received from the latter. It is apparent that that employee had received no official information concerning the removal of the ‘PSAF’, but would keep him informed of any updates.
345 That email was capable of confirming the initial suspicion relating to anticompetitive contact among the freight forwarders concerning the PSS, since use of the expressions ‘further follow up’ and ‘we will keep you posted on any new updates’ indicates that that contact was not in isolation.
346 In that context, the Court must reject the applicants’ argument that no information was provided as to how the ‘PSAF’, mentioned by the Expeditors employee, was related to the PSS. In that regard, suffice it to state that the relationship between the ‘PSAF’ and the PSS is very clear from the explanations in the internal email referred to in paragraph 344 above. In that email, the employee of that freight forwarder produced a copy of the content of the email from the Expeditors employee, stating that this was part of a further follow up on the latter’s ‘PSS pricing’.
347 Accordingly, the argument that the Commission was not able to carry out a targeted inspection in relation to the PSS cartel must also be rejected.
348 As regards the applicants’ fourth argument, that the 2006 Leniency Notice does not allow an undertaking to submit material concerning separate infringements after the date of its application, after the Commission has already obtained evidence from other sources, the Court must reject the argument.
349 In that regard, the Court must observe that, at the time when the Commission adopted the decision to grant DP conditional immunity, it had not been contacted by other undertakings and that, according to the Commission, DP had already submitted to it the material examined in paragraphs 312 to 347 above. It is clear that the applicants offer no argument capable of calling into question those findings.
350 In the light of the foregoing, the Court must reject the submission that, by granting DP immunity with respect to the PSS and CAF cartels, the Commission infringed point 8(a) and points 9 and 22 of the 2006 Leniency Notice.
The submission concerning the use of different criteria
351 The applicants argue that the Commission was in breach of the principle of equal treatment and committed errors of assessment by treating DP’s immunity application and the applications of other undertakings on a different basis.
352 In that regard, first, it must be observed that, as is apparent from recitals 1029 and 1031 of the contested decision, when, at the end of the administrative procedure, the Commission made a final decision on DP’s immunity application and on the applications for reduction of fines made by other undertakings, it assessed those applications on the same basis, namely in connection with the separate NES, AMS, CAF and PSS cartels that it had found to exist at that stage in the procedure.
353 Next, the Court must examine the applicants’ argument that the Commission misapplied the 2006 Leniency Notice by taking into account material which it had in its possession at the time when it received, first, DP’s immunity application and, second, the applications made by other undertakings, including those made by the applicants. According to the applicants, the point in time at which the applications for immunity and reduction of fines had been lodged had already been taken into account in the ranking of the applications. Accordingly, that could not be taken into account a second time in order to justify treating DP’s application and the applications for reduction made by other undertakings on different bases.
354 First, on the assumption that this submission refers to the fact that the Commission took account of the material in its possession at the time when the various applications were submitted, it must be observed that it is very clear from the rules laid down in the 2006 Leniency Notice that the Commission is obliged to take account of the material in its possession at the time when an application for immunity or for reduction of a fine is lodged. Thus, it is stated in point 10 of that notice that conditional immunity pursuant to point 8(a) is not to be granted if the Commission already has sufficient evidence to adopt a decision ordering an inspection in connection with the alleged cartel. As regards applications for reduction of a fine, it follows from point 24 of the 2006 Leniency Notice that, in order to obtain a reduction, an undertaking must submit to the Commission evidence of the alleged infringement which represents significant added value ‘with respect to the evidence already in the Commission’s possession’.
355 It must further be borne in mind that the aim of the Commission’s leniency programme is not to offer to undertakings participating in secret cartels an opportunity to escape the financial consequences of their responsibility, but to facilitate the detection of such practices and then, in the administrative procedure, to reconstruct the relevant facts as far as possible. Accordingly, the benefits which may be obtained by undertakings participating in such practices cannot exceed the level that is necessary to ensure the full effectiveness of the leniency programme and of the administrative procedure carried out by the Commission.
356 Accordingly, contrary to what is argued by the applicants, in this case, the Commission did not err by taking account of the fact that, at the time when DP submitted its application for immunity, the Commission had no prior knowledge of anticompetitive conduct affecting freight forwarding services, whereas, when it received the applications of other undertakings, including that of the DB group, the Commission already had such information. In that context, it must be recalled that, when the other undertakings lodged their applications, the Commission had in its possession not only the information and evidence that DP had submitted to it, but also evidence that the Commission had seized in the course of the unannounced inspections.
357 Second, on the assumption that the applicants’ argument refers to the fact that, on the one hand, as regards DP’s immunity application, the Commission first granted conditional immunity on the basis of the information which it had in its possession at that stage in the procedure and, secondly, at the end of the administrative procedure, granted final immunity with respect to the identified cartels on the ground that those cartels were covered by the cartel with respect to which it had granted conditional immunity, whereas, on the other hand, as regards the applications for reduction of fines made by other undertakings, the Commission confined itself to examining the added value of the information and evidence submitted in connection with cartels identified at the end of the administrative procedure, that argument must again be rejected.
358 In that regard, it must be observed that the 2006 Leniency Notice provides for distinct bodies of rules for, on the one hand, applications for immunity and, on the other, applications for reduction of fines. Only with respect to applications for immunity does the 2006 Leniency Notice provide that the Commission is to adopt a decision granting conditional immunity on the basis of the information it has in its possession when it receives such an application, therefore on the basis of an ex ante assessment. In contrast, with respect to applications for reduction of fines, there is no provision for a conditional decision in advance and the Commission is therefore limited to examining, at the end of the administrative procedure, the added value of the information and evidence submitted with respect to cartels which the Commission has found to exist at the end of the procedure.
359 In so far as the applicants’ argument seeks to challenge the making of that distinction in the 2006 Leniency Notice, suffice it to state that the preferential treatment afforded to the first undertaking to cooperate properly with the Commission for the purposes of point 8 of that notice is justified by the objectives of, on the one hand, encouraging undertakings to cooperate as early as possible with the Commission in order to qualify for that preferential treatment and, on the other, not to confer on the undertakings which are not the first to cooperate properly with the Commission advantages which exceed the level that is necessary to ensure that the leniency programme and the administrative procedure are fully effective (see paragraph 355 above).
360 In that context, it must also be borne in mind that the distinction between the body of rules laid down, on the one hand, with respect to applications for immunity, and, on the other, applications for reduction of a fine is qualified by the rules laid down in the third paragraph of point 26 of the 2006 Leniency Notice. According to that rule, where an undertaking applying for a reduction of a fine reveals evidence that is compelling within the meaning of point 25 of the 2006 Leniency Notice, which the Commission uses to establish additional facts increasing the gravity or duration of the infringement, the Commission is not to take into account those facts when setting the amount of the fine imposed on the undertaking which provided that evidence and is to grant to that undertaking, thereby, ‘partial immunity’.
361 In the light of the foregoing, the argument that the Commission based its assessments of DP’s immunity application and applications for reduction of fines made by other undertakings on different criteria must be rejected.
The submission that the Commission’s approach is liable to block access to immunity
362 The applicants claim that the approach taken by the Commission enables one undertaking to block access to immunity for an entire industrial sector without submitting substantiated evidence concerning specifically the CAF and PSS cartels.
363 This submission must be rejected.
364 In that regard, suffice it to recall that information on the existence of an alleged infringement of Article 101 TFEU, of which the Commission has no prior knowledge, has an intrinsic value that justifies the granting of immunity for the scope of that infringement if that information enables the Commission to carry out targeted inspections in relation to it, even if that information may not yet be very detailed (see paragraphs 334 to 337 above). In this case, as is apparent from paragraphs 312 to 347 above, the information and evidence submitted by DP enabled the Commission to carry out targeted inspections concerning an alleged infringement the scope of which covered the CAF and PSS cartels.
The submission concerning unforeseeability
365 The applicants claim that, if the Commission’s approach was followed, it would become impossible for undertakings to foresee whether their cooperation would be rewarded.
366 This submission must be rejected.
367 In that regard, it must be recalled one of the objectives pursued by the Commission’s leniency programme is to encourage undertakings to cooperate with it as early as possible. The fact that the reward for cooperation is dependent on the information that the Commission already has in its possession is therefore an inherent part of the leniency programme.
368 In the light of the foregoing, it must be concluded that none of the arguments put forward by the applicants is such as to demonstrate an error in the Commission’s assessment of DP’s immunity application and of the applications for reduction of fines made by other undertakings.
369 Consequently, the first part of the fifth plea in law must be rejected not only with respect to the application for annulment, but also with respect to the request that the Court exercise its unlimited jurisdiction.
The second part of the fifth plea in law: failure to comply with the third paragraph of point 26 of the 2006 Leniency Notice
370 The second part of this plea relates to the Commission’s decision to grant to Schenker International (HK) and to DB ‘partial immunity’ with respect to the PSS cartel solely for the period from 4 February to 23 June 2006.
371 In recitals 1089 and 1090 of the contested decision, the Commission found that the evidence which DB had submitted to it on 29 May 2008 constituted compelling evidence which enabled it to establish that the PSS cartel had continued until 23 June 2006 and the Commission decided to grant ‘partial immunity’ under the third paragraph of point 26 of the 2006 Leniency Notice for the period from 4 February until 23 June 2006. In that context, the Commission found that ‘3 February 2006 [was] the last of the previously known anticompetitive contacts within the single and continuous [infringement]’.
372 In recital 1096 of the contested decision, the Commission rejected DB’s request that it should be granted ‘partial immunity’ from 6 December 2005 and not from 4 February 2006. In that regard, the Commission stated that, as regards the meetings of 13 January and 3 February 2006, DB had not provided sufficiently compelling evidence, on the anticompetitive nature of competitor contacts, that could be used to establish additional facts increasing the gravity or duration of the infringement. Consequently, that evidence did not constitute stand-alone, compelling evidence proving the existence of the PSS infringement for the entire period from 7 December 2005 until 4 February 2006.
373 The applicants argue that, by setting the start of the period for which it granted them ‘partial immunity’ at 4 February 2006, the Commission committed an error of assessment and that its application of the third paragraph of point 26 of the 2006 Leniency Notice was contrary to the purpose of that provision. The applicants maintain that they were eligible for ‘partial immunity’ from 7 December 2005. They claim that they were the first to submit evidence that, first, enabled the Commission to establish that meetings in relation to the PSS had taken place until 23 June 2006 and, second, established that meetings had taken place on 13 January and 3 February 2006. Even though DP had submitted subsequently information concerning the content of the meetings of 13 January and 3 February 2006, DP was not the first undertaking to submit that evidence from which it could be established that the PSS cartel had continued until 23 June 2006.
374 The Commission disputes those arguments.
375 In that regard, it must be recalled that the third paragraph of point 26 of the 2006 Leniency Notice provides that ‘if the applicant for a reduction of a fine is the first to submit compelling evidence, in the sense of point 25, which the Commission uses to establish additional facts increasing the gravity or duration of the infringement, the Commission will not take such additional facts into account when setting any fine to be imposed on the undertaking which provided this evidence’.
376 The purpose of that rule is to encourage undertakings to cooperate fully with the Commission, even if they have not been granted conditional immunity pursuant to point 8 of the 2006 Leniency Notice. In the absence of the rule laid down in the third paragraph of point 26 of the 2006 Leniency Notice, such undertakings would fear that, by submitting evidence which might affect the duration or the gravity of the infringement and of which the Commission had no prior knowledge, they might run the risk of the fines which might be imposed on them being increased.
377 The phrase ‘first to submit compelling evidence’ allows a restrictive interpretation of the third paragraph of point 26 of the 2006 Leniency Notice, limiting it to cases where a company that is party to a cartel provides new information to the Commission, relating to the gravity or duration of the infringement, and excluding from it cases where a company has done no more than provide material which reinforces the evidence of the existence of the infringement (see, to that effect, order of 21 November 2013 in Kuwait Petroleum and Others v Commission, C‑581/12 P, EU:C:2013:772, paragraph 19).
378 In the light of those principles and that case-law, the Court must examine whether the grounds on which the Commission based its decision to set 4 February 2006 as the start of the period for which it granted ‘partial immunity’ to the applicants with respect to the PSS cartel are well founded.
379 In recital 1090 of the contested decision, the Commission stated that ‘3 February 2006 [was] the last of the previously known anticompetitive contacts within the single and continuous [infringement]’.
380 The Court asked the Commission to submit all the evidence that enabled it to establish that the PSS cartel existed after 6 December 2005 and that was already in its possession before the applicants’ statement of 29 May 2008.
381 It is clear that there is nothing in the material submitted by the Commission to establish that, before that statement, the Commission was already aware of the occurrence of anticompetitive contact on 3 February 2006.
382 Accordingly, if the reference to 3 February 2006 as the date of the last previously known anticompetitive contact, as stated in recital 1090 of the contested decision, were to be read as a finding by the Commission that, before that statement, it was already aware of the meeting of 3 February 2006 or of another anticompetitive contact which occurred on the same date, it would have to be concluded that the Commission has been unable to demonstrate that that is factually correct. On the contrary, in the course of the procedure before the Court, the Commission has acknowledged that, before that statement, it had not been aware of the existence of the meetings of 13 January and 3 February 2006.
383 However, recital 1090 of the contested decision has to be read in its context. First, in recital 1086 of the contested decision the Commission found that the applicants had submitted evidence concerning meetings which it did not previously have in its possession. Second, account must be taken of the reasons stated in recitals 1095 and 1096 of the contested decision, where the Commission stated that, for the period from 7 December 2005 to 3 February 2006, ‘partial immunity’ could not be granted to the applicants by reason of the fact that the evidence which the applicants submitted to it on 29 May 2008 had not enabled it to establish that the meetings of 13 January and 3 February 2006 had an anticompetitive nature.
384 Accordingly, it is apparent from reading recitals 1086, 1090, 1095 and 1096 of the contested decision together that the Commission did not justify its refusal to extend ‘partial immunity’ to the period from 7 December 2005 until 3 February 2006 on the ground that, before the applicants’ statement of 29 May 2008, it already had in its possession evidence enabling it to establish that anticompetitive contact took place on 3 February 2006. Instead, the Commission relied on the consideration that, on 29 May 2008, the applicants did not provide evidence that enabled it to find that the meetings of 13 January and 3 February 2006 had an anticompetitive nature.
385 As regards that reasoning, it must be recalled that, under the third paragraph of point 26 of the 2006 Leniency Notice, the Commission is bound to determine the period for which ‘partial immunity’ is to be granted taking into consideration the additional duration and gravity of the infringement that can be established by virtue of the evidence of facts submitted by an undertaking that it was previously unaware of.
386 In this case, it is undisputed, first, that, before the submission of documents by the applicants, the Commission had no knowledge of either the meetings of 13 January and 3 February 2006 or the meeting of 23 June 2006 and, second, that, by submitting those documents, the applicants revealed evidence enabling the Commission to establish the existence of the meeting of 23 June 2006 and the anticompetitive nature of that meeting.
387 That being the case, the Commission should have examined whether the evidence submitted by the applicants constituted compelling evidence that enabled it to establish an additional duration of the PSS cartel until 23 June 2006. If it did, the Commission was bound to grant ‘partial immunity’ to the applicants for the whole of the additional duration that it could establish with their assistance, namely for the period ending 23 June 2006 and starting on the date of the last anticompetitive contact concerning that cartel of which it had knowledge before the applicants’ statement of 29 May 2008.
388 Yet it is apparent from the contested decision that the Commission adopted a different approach. The Commission stated that, first, before the meeting of 23 June 2006, other meetings had taken place, namely the meetings of 13 January and 3 February 2006, and that, second, the anticompetitive object of those meetings could not be demonstrated using the evidence submitted by the applicants. Those were the findings on which it relied to justify its decision to restrict the start of the period for which it granted ‘partial immunity’ to the applicants to 4 February 2006.
389 In so doing, the Commission did not apply the rule laid down in the third paragraph of point 26 of the 2006 Leniency Notice in accordance with the objectives of that provision. The Commission’s approach exposes an undertaking that submits compelling evidence enabling the Commission to establish additional infringement duration and justifying therefore the granting of ‘partial immunity’ for that period to the risk that, subsequent to the production of such information, that period may be restricted. Following that approach, in the event that, subsequently, the Commission discovers that other anticompetitive contacts took place within that period, it would be entitled to restrict the benefit of ‘partial immunity’ to the period running from the date of the anticompetitive contact reported by the undertaking until the date of the newly discovered contact. In such a situation, an undertaking would therefore fear that, notwithstanding the fact that it had disclosed facts previously unknown to the Commission and enabling the Commission to extend the duration of the cartel, the amount of the fine to be imposed on it would be increased by taking into account part of that period. That would reduce the interest of undertakings which were not granted conditional immunity under point 8 of the 2006 Leniency Notice to cooperate fully with the Commission.
390 In the light of the foregoing, it is clear that, contrary to the position taken by the Commission in recitals 1095 and 1096 of the contested decision, the fact that the applicants had not submitted evidence to establish the anticompetitive nature of the meetings of 13 January and 3 February 2006 was not sufficient ground to restrict the commencement of the period for which ‘partial immunity’ was to be granted to the applicants to the day following the meeting of 3 February 2006.
391 It follows that the reasons stated in recitals 1090, 1095 and 1096 of the contested decision are vitiated by error.
392 However, in the exercise of the Court’s unlimited jurisdiction, it is appropriate to examine whether the Commission’s conclusion concerning the period for which ‘partial immunity’ is to be granted to Schenker International (HK) and DB can nonetheless be retained.
393 Since the Court takes into account all the facts when exercising its unlimited jurisdiction (see, to that effect, judgment in Prym and Prym Consumer v Commission, cited in paragraph 177 above, EU:C:2009:505, paragraph 86 and the case-law cited), the Court asked the Commission to submit to it the information and evidence which was in the Commission’s possession before the applicants’ statement of 29 May 2008 and invited the applicants to submit their comments in that regard (see paragraph 19 above). According to the Commission, and as is not disputed by the applicants, the latter had access to those documents earlier, in the course of the administrative procedure.
394 In that context, first, the Court must take note of an email to which reference is made in recital 324 of the contested decision. According to the Commission, and as is not disputed by the applicants, that email was submitted to it by another undertaking that participated in the PSS cartel before the statement of 29 May 2008. It is apparent from the content of that email that the freight forwarders who attended a meeting on 6 December 2005 concerning the PSS had agreed on, inter alia, the extension of the PSS until the end of January 2006 and on exchanging views on actual 2006 costs in January 2006. They also stated that they ‘would like to do the same’ in 2006.
395 Second, the Commission produced a series of internal emails of a freight forwarder owned by that undertaking, the common subject being ‘PSS n GRI’ (Annex G.33). The Commission states that this document was sent to it before 29 May 2008, as is not disputed by the applicants.
396 In one email of that series, which is subsequent to 3 February 2006, Mr C., an employee of the freight forwarder concerned, stated that he had checked through various sources, including ‘competitors … in Europe’, and that, according to his sources, the major competitors of that freight forwarder, including Schenker, Panalpina and Kuehne & Nagel, had no intention of imposing a ‘GRI’ in Europe. In that context, it must be observed that the ‘GRI’ mentioned in that email fell within the scope of the PSS cartel. It is apparent from the description of the PSS cartel in recital 332 of the contested decision that, after extending the application of the PSS until the end of January 2006, the freight forwarders participating in that cartel had envisaged either extending the imposition of the PSS, or undertaking a general rate increase (‘GRI’). As is apparent from recitals 363 to 366 of the contested decision, the Commission considered that the discussions concerning the ‘GRI’ were part of the PSS cartel, since, in essence, the objective was to extend the imposition of a surcharge covering transport costs. Further, the close connection of the PSS and the ‘GRI’ is confirmed by the fact that, first, in one email of the series mentioned in paragraph 395 above, an employee of that freight forwarder states that an employee of a competitor had taken the view that ‘GRI’ was ‘somewhat a continuation of PSS’ and that, second, the common subject of the emails in that series was ‘PSS n GRI’.
397 Further, in one email of the series, sent subsequently to the one referred to in paragraph 396 above, another employee of the freight forwarder concerned stated that freight forwarders other than those mentioned in the earlier email had been contacted to ascertain their position.
398 The series of internal emails of the undertaking concerned produced in Annex G.33 enabled the Commission to establish the fact that, subsequent to 3 February 2006, anticompetitive contact, which fell within the scope of the PSS cartel and in which employees of DHL, Expeditors, Schenker, Panalpina, Kuehne & Nagel and B. were involved, was ongoing.
399 Third, the Court must take note of two internal emails of the freight forwarder concerned, which are produced in Annex G.31, and which the Commission states were submitted by the undertaking concerned before 29 May 2008, as is not disputed by the applicants. It is apparent from the second email that, subsequent to 3 February 2006, employees of the freight forwarder concerned were aware of the fact that on certain routes, particularly the route between Hong Kong (China) and the European Union, most freight forwarders had the intention to apply ‘some sort of GRI’. In so far as, with regard to that second email, the applicants argue that reference is only made to a ‘GRI’ and that it is therefore not established that it related to the PSS cartel as described in the contested decision, the Court must reject that argument by referring back to the considerations set out in paragraph 396 above. That email therefore confirms that, subsequent to 3 February 2006, the freight forwarders continued to engage in anticompetitive contacts concerning the imposition of a general price increase.
400 Accordingly, before the applicants’ statement of 29 May 2008, the Commission already had in its possession documents enabling it to demonstrate the existence of the PSS cartel until 3 February 2006 inclusive.
401 It follows, first, that, as regards the duration of the PSS cartel, the documents which the applicants submitted on 29 May 2008 cannot be regarded as documents having a direct bearing on the gravity or duration of the alleged cartel, but solely as material that strengthens the evidence of the existence of the infringement, in accordance with the case-law referred to in paragraph 377 above.
402 Second, as regards the gravity of the PSS cartel, it must be stated that, from the evidence submitted by the applicants (Annex Q.1), it can only be inferred that the object of the meetings of 13 January and 3 February 2006 was to obtain ‘regular updates’. In itself and without corroboration, that evidence therefore did not make it possible to establish that those meetings had an anticompetitive object. Accordingly, with respect to those meetings, the applicants did not produce, on 29 May 2008, evidence capable of having a direct bearing on the assessment of the gravity of the PSS cartel.
403 Accordingly, the evidence concerning the meetings of 13 January and 3 February 2006 that the applicants produced on 29 May 2008 was, admittedly, evidence that strengthened the evidence of the existence of the infringement that the Commission already had in its possession, but did not constitute compelling evidence to justify their being granted ‘partial immunity’ with respect to the PSS cartel for a period prior to 4 February 2006.
404 That conclusion cannot be invalidated by the applicants’ arguments that, on the one hand, the material that they produced on 29 May 2008 was compelling within the meaning of point 25 of the 2006 Leniency Notice and, on the other, that the Commission relied on that material in the contested decision to establish the existence of the meeting of 13 January 2006.
405 In that regard, it must be recalled that it is not sufficient ground to apply the third paragraph of point 26 of the 2006 Leniency Notice that the evidence is compelling within the meaning of point 25 of the 2006 Leniency Notice: it is also necessary that the evidence enable the Commission to establish additional facts increasing the gravity or duration of the infringement.
406 Further, the fact that, at the end of the administrative procedure, in the contested decision, the Commission relied on some of the evidence that the applicants submitted in their statement of 29 May 2008 in order to establish the existence of the PSS infringement does not preclude the finding that, before that statement, the Commission already had in its possession evidence that enabled it to establish that the PSS cartel had continued until the second half of February 2006.
407 In that context, it must also be observed that the Commission took account of the fact that the evidence which the applicants submitted on 29 May 2008 was compelling, within the meaning of point 25 of the 2006 Leniency Notice, in its assessment of their application for a reduction of the fine. It is apparent from recitals 1084 to 1088 of the contested decision that, because of their contributions with respect to the PSS cartel, the applicants were granted a 50% reduction in the fines which would normally have been imposed on them for their participation in that cartel.
408 Accordingly, the Court must conclude that the Commission is correct to claim that it was not obliged to grant ‘partial immunity’ to Schenker International (HK) and to DB for a period prior to 4 February 2006.
409 Last, even though, having regard to some of the documents that the Commission produced, it cannot be ruled out that the period for which ‘partial immunity’ should be granted to the applicants could have been further restricted, that is, to a period from mid-February or late February 2006 until 23 June 2006, and that the duration of the participation of those applicants in the PSS cartel to be used in the calculation of fines could have been correspondingly increased, it is clear that, following the rounding method that the Commission used in recital 950 of the contested decision, namely a rounded down monthly basis, that would have no effect on the amount of the fines.
410 Consequently, the Commission’s conclusion that, with respect to the PSS cartel, Schenker International (HK) and DB were to be penalised for a period of five months can be maintained on the basis of the considerations set out in paragraphs 392 to 409 above.
411 It follows that, although examination of the second part of the fifth plea in law has revealed an error in the Commission’s reasoning concerning the amount of the fines imposed on Schenker International (HK) and DB with respect to their participation in the PSS cartel, by virtue of the Court’s unlimited jurisdiction, the amounts of those fines must be maintained. The Court must therefore reject the second part of the fifth plea in law, and, therefore, the fifth plea in law in its entirety.
6. The sixth plea in law, concerning the Commission’s decision not to seek settlement
412 The applicants argue that, by letter of 21 October 2009, the DB group informed the Commission that this case was suitable for settlement and expressed its willingness to enter into discussions with a view to reaching a settlement. The Commission replied, in a letter of 4 November 2009, that, in the light of the particular circumstances of this case and the relatively advanced stage of proceedings, it did not deem it appropriate to commence settlement discussions in this matter, and thereby, according to the applicants, infringed Article 23(2) of Regulation No 1/2003 and committed errors of assessment, and, further, was in breach of the principle of equal treatment.
The first part of the plea: an infringement of Article 23(2) of Regulation No 1/2003 and errors of assessment
413 The applicants’ first argument is that, following receipt of their letter of 21 October 2009, the Commission should, first, have ascertained whether the parties concerned were willing to enter into settlement talks in order to be able meaningfully to exercise its discretion and, second, have commenced talks with them in order to deal with the case by settlement. The purpose of a settlement procedure is to optimise the use of the Commission’s resources by improving its enforcement score without necessarily increasing its administrative burden. The Commission cannot make an appropriate assessment of the prospects of achieving procedural efficiencies by means of the settlement procedure without having first ascertained whether the parties under investigation are prepared potentially to acknowledge liability under Article 101 TFEU for all or part of the conduct examined by the Commission.
414 The Commission disputes those arguments.
415 In that regard, first, it must be observed that, according to the approach advocated by the applicants, the Commission is incapable of fully assessing whether a settlement procedure is appropriate until it has made contact with the parties concerned and explored their interest in achieving a settlement. According to the applicants, the Commission therefore committed an error of assessment in taking the decision not to pursue settlement before it had made contact with the parties to whom the contested decision was addressed.
416 Such an approach is incompatible with the applicable provisions.
417 Under Article 10a(1) of Regulation No 773/2004, as amended by Commission Regulation (EC) No 622/2008 of 30 June 2008 (OJ 2008 L 171, p. 3), the Commission may set a time limit within which the parties may indicate in writing that they are prepared to engage in settlement discussions with a view to possibly introducing settlement submissions. It is therefore plain from the wording of that provision that the Commission is not obliged to make contact with the parties, but that it has a discretion in that regard. That reading of Article 10a(1) of Regulation No 773/2004, as amended, is confirmed by recital 4 of Regulation No 622/2008, which states that the Commission has a broad margin of discretion to determine in which cases it may appropriately explore the parties’ interest to engage in settlement discussions, as well as to decide to engage in such discussions or discontinue them or to definitely settle the case.
418 In that context, it must also be noted that the Commission’s practice is consistent with that approach. According to point 6 of the Commission’s Notice on the conduct of settlement procedures, where the Commission considers that a particular case may, in principle, be suitable for settlement, it is supposed to explore the possible interest in settlement of all the parties, although the parties to the proceedings do not have a right to that procedure. It is plain from point 6 that only if the Commission were to consider that a case was suitable for settlement would it be supposed to explore the interest of the undertakings concerned. Accordingly, point 6 also provides for the possibility that the Commission may consider that a case is not suitable for settlement without first having made contact with the parties concerned and having explored their interest in achieving a settlement.
419 It follows that, contrary to what is argued by the applicants, the mere fact that the Commission did not explore their interest and the interest of the other undertakings concerned in achieving a settlement is not in itself capable of demonstrating that the contested decision is vitiated by errors. Therefore, that submission must be rejected.
420 The applicants’ second argument is that, in the circumstances of this case, the Commission’s decision not to choose settlement was vitiated by errors of assessment. In this case, settlement would have resulted in efficiency gains.
421 The Commission disputes those arguments.
422 It must be observed that, contrary to what is suggested by the applicants, the Commission exercised its discretion. In that regard, suffice it to state that, in its letter of 4 November 2009, the Commission replied that it did not deem it appropriate to commence settlement discussions in this matter.
423 Further, as regards the submissions concerning an error of assessment by the Commission, it must initially be borne in mind that, according to the Commission, its decision not to take the option of settlement in this case was based on, inter alia, the consideration that the probability of reaching a common understanding regarding the scope of the potential objections with the parties involved was not sufficiently high, given, in particular, the substantial number of parties.
424 In that context, it must be recalled that the aim of settlement is to make optimum use of the Commission’s resources through the imposition of effective and timely punishment. According to recital 4 of Regulation No 622/2008, the Commission must take account of the probability of reaching a common understanding, regarding the scope of the potential objections, with the parties involved within a reasonable time frame. As is stated in that recital, in that context, the Commission may take account of factors such as the number of parties involved, foreseeable conflicting positions on the attribution of liability, and the extent to which the facts may be disputed. It is also stated in that recital that the Commission may take account of concerns other than those relating to possible efficiency gains, such as the possibility of setting a precedent.
425 The Court must examine, in the light of the foregoing considerations, whether the arguments put forward by the applicants are capable of demonstrating that the Commission committed errors of assessment.
426 In that regard, first, the applicants refer to the large number of parties concerned and the possibility that a settlement procedure might have produced efficiency gains.
427 As regards that argument, it must be recalled that the efficiency gains arising from a settlement procedure are greater when all the parties concerned accept settlement. In such a situation, the Commission is not required to permit access to the file and to organise a hearing. The Commission may also confine itself to drafting a succinct version of the statement of objections in one language. On the other hand, if one or more parties concerned are not willing to enter into talks on settlement, the efficiency gains are more limited. Accordingly, it is not misconceived to consider that a large number of parties concerned may have a negative effect on the time the Commission may require to reach a common understanding regarding the scope of the potential objections with the parties concerned.
428 In the light of the fact that, in this case, the number of parties participating in the procedure was 47, the Commission did not err in considering that that aspect of the case was not conducive to achieving a settlement.
429 In that context, it must also be observed, first, that a significant number of the undertakings concerned had not cooperated with the Commission on the basis of its 2006 Leniency Notice and, second, that certain aspects of its decision, such as the admissibility of information and evidence submitted by DP, the attribution of liability to economic successors and the determination of the value of sales made which were affected by the cartels, were likely to be disputed by some of the parties to whom the contested decision was addressed. Accordingly, contrary to what is argued by the applicants, it was conceivable that some aspects of the contested decision were likely to be disputed by its addressees.
430 Contrary to what is claimed by the applicants, the large number of parties therefore did not preclude the Commission deciding not to enter into a settlement procedure.
431 Second, the applicants argue that the parties concerned might have been fewer in number if the Commission had decided to initiate separate procedures for each of the AMS, CAF, NES and PSS cartels, instead of grouping them together in one procedure. According to the applicants, the Commission cannot take advantage of a situation for which it is responsible.
432 That argument must also be rejected.
433 In that regard, it must be observed that both the option of settlement and the option of parallel treatment of a number of infringements in one and the same procedure are designed to achieve efficiency gains. Yet since no provision requires that either of those two options be preferred, the Commission’s choice to deal with a number of infringements in a single procedure is not restricted by the option of settlement. Accordingly, the Commission cannot be criticised for choosing to deal with the AMS, CAF, NES and PSS cartels together and for assessing whether settlement was appropriate by taking into consideration the procedural situation resulting from that choice.
434 In any event, it is clear that the applicants fail to demonstrate that a decision to deal with the abovementioned infringements in isolation would have led to a different outcome as regards settlement. In that context, it must be observed that, even if each of those infringements is considered in isolation, there was, with respect to each infringement, a not insignificant number of undertakings who had not cooperated under the 2006 Leniency Notice and that, taking that fact into account, the Commission was entitled to take the view that none of the infringements could suitably be dealt with by settlement, and did not thereby commit an error of assessment.
435 Third, the applicants argue that the Commission erred by relying on the advanced stage of proceedings. According to the applicants, that is not a relevant reason for not initiating the settlement procedure. On the contrary, the Commission cannot take a decision concerning a possible settlement procedure before having reached a relatively advanced stage in proceedings, enabling it to have an understanding of the conduct of the undertakings concerned and to have sufficient evidence in its possession to establish the existence of an infringement.
436 The Commission disputes those arguments.
437 Those arguments must be rejected as being ineffective. In this case, the Commission’s finding that the case could not suitably be dealt with by settlement was already justified by reason of the consideration concerning the large number of parties (see paragraphs 426 to 430 above).
438 Further, and in any event, it must be observed that, in this case, the Commission did not err in taking account of the stage reached in the proceedings at the time when it received the letter from the DB group in which the latter expressed its interest in a settlement procedure. As stated above, the fact that undertakings make known their interest in participating in settlement is one of the factors which the Commission may take into account in order to decide whether the case is suitable for settlement, since that factor may affect the probability of reaching a common understanding, regarding the scope of the potential objections, with the parties involved within a reasonable time frame. However, the weight of an expression of interest is variable, and dependent on the stage in the proceedings. In a case where, without committing any error, the Commission envisaged not opting for settlement and had already initiated proceedings which did not involve settlement, the efficiency gains which may arise from settlement may prove to be more limited.
439 In this case, the Commission had envisaged proceedings which did not involve settlement and, when it received the DB group’s letter of 21 October 2009, the Commission had already prepared and discussed a draft statement of objections. Accordingly, the Commission’s finding that, having regard to the work that had already been done, the DB group’s expression of interest had less weight, is not vitiated by any error of assessment.
440 Fourth, the applicants argue that the competition authorities in a number of non-EEA States, such as New Zealand, the United States and South Africa, have considered it appropriate to reach settlements with regard to the same or similar infringements.
441 That argument must also be rejected.
442 In that regard, suffice it to state that the Commission’s decision must be assessed on the basis of the applicable EU legislation, and the fact that non-EEA States may have opted to proceed by settlement cannot therefore demonstrate that the Commission committed an error of assessment. In any event, in so far as the applicants refer to examples pertaining to States where a system of plea bargaining is used, it must be observed the settlement procedure provided for in Article 10a(1) of Regulation No 773/2004, as amended, is substantially different from such a system.
443 Accordingly, none of the arguments put forward by the applicants is capable of demonstrating that the Commission’s assessment that this case was not suitable for settlement is vitiated by errors.
444 The third submission put forward by the applicants, which the Court must answer, is that the Commission has stated other reasons for its decision not to take the option of settlement in the course of the procedure before the Court and that those reasons are inadmissible or at the least, of no relevance.
445 In that context, the Court must refer to the case-law mentioned in paragraphs 160 to 162 above. It must also be recalled that the statement of reasons must, in principle, be notified to the person concerned at the same time as the decision adversely affecting him, and a failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the decision during the proceedings before the Courts of the European Union (judgment of 19 July 2012 in Alliance One International and Standard Commercial Tobacco v Commission, C‑628/10 P and C‑14/11 P, ECR, EU:C:2012:479, paragraph 74).
446 Further, the Court must observe that this action is directed against the contested decision and that it is therefore the statement of reasons in that decision which must be examined. However, as part of the background to that decision, the content of the Commission’s letter of 4 November 2009 may also be taken into account.
447 As regards the sufficiency of the reasons stated in the contested decision, it is clear, first, that, on the one hand, in its letter of 4 November 2009, the Commission referred to the advanced stage of proceedings and the particular circumstances of the case. On the other, it is sufficiently clear from the context and the content of the contested decision that the number of parties concerned was high, that a not insignificant proportion of those undertakings had not cooperated with the Commission, and that some aspects of the Commission’s approach were likely to be disputed (see, in particular, the listing of the addressees of the contested decision, Section 2.2 thereof, on the undertakings subject to the proceedings before the Commission, Section 8.5 thereof, on the application of the 2006 Leniency Notice, recitals 644 to 648 thereof, on the competence of the Commission and recitals 857 to 890 thereof, on the determination of the value of sales).
448 Second, the legal context of the contested decision, namely recital 4 of Regulation No 622/2008 and the Commission Notice on the conduct of settlement procedures entails that the Commission consider that those circumstances are relevant to its choice of whether or not to opt for settlement of the case.
449 It follows that the statement of reasons in the contested decision was sufficiently clear to enable the applicants to understand the reasons and the Court to exercise its power of review.
450 The first part of the sixth plea in law must therefore be rejected.
The second part of the plea: breach of the principle of equal treatment
451 The applicants argue that the Commission was in breach of the principle of equal treatment. The freight forwarding case is not significantly different from other cases in which the Commission did opt for settlement.
452 Initially, it must be recalled that the principle of equal treatment precludes comparable situations from being treated differently and different situations from being treated in the same way, unless such difference in treatment is objectively justified, but with regards to the comparability of situations, the Commission’s practice in previous decisions does not serve as a legal framework for the fines imposed in competition matters and decisions in other cases can give only an indication for the purpose of determining whether there is discrimination, when the facts of the various cases are not identical (paragraphs 274 and 275 above).
453 Further, and in any event, it must be observed that the circumstances relied on by the applicants are not such as to establish a breach of the principle of equal treatment.
454 In that context, it must be recalled that the comparability of two situations must be assessed in the light, inter alia, of the subject matter and purpose of the legislative acts at issue (see, to that effect, judgment in Arcelor Atlantique and Lorraine and Others, cited in paragraph 278 above, EU:C:2008:728, paragraph 26). Since the objective of the settlement procedure is to enable the Commission to deal with cartels more rapidly and more effectively, the Commission must take into account, inter alia, the probability of reaching a common understanding regarding the scope of the potential objections with the parties involved within a reasonable time frame (see recital 4 of Regulation No 622/2008).
455 First, in so far as the applicants argue that, in other cases, the infringements were more complex, suffice it to state that such factors are not, in themselves, such as to demonstrate that, in this case, the Commission should have taken the view that it would have been easier to reach a common understanding regarding the scope of the potential objections with the parties involved within a reasonable time frame.
456 Second, in so far as the applicants argue, in essence, that each of the NES, AMS, CAF and PSS cartels were, individually, suitable for settlement, suffice it to state that that argument does not refer to the Commission’s previous practice, but does no more, in essence, than reproduce the submission that the number of parties concerned could have been lower if the Commission had decided to initiate separate proceedings for each of the AMS, CAF, NES and PSS cartels, a submission already rejected in paragraphs 431 to 434 above.
457 Third, in so far as the applicants claim that, in Commission Decision C(2010) 5001 final of 20 July 2010 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/38.866 — Animal feed phosphates), the Commission adopted a settlement decision which did not extend to all the parties involved in the infringement, suffice it to state that, in that case, after the Commission decided to initiate discussions with the parties concerned with a view to settlement, the Commission decided not to adopt a settlement decision with respect to one undertaking that had decided to abandon the discussions. Yet the applicants do not explain in what way that renders that case comparable to this case, where the number of parties was very high and a not insignificant proportion of the undertakings concerned had not cooperated with the Commission.
458 Accordingly, the Court must reject the part of the sixth plea concerning a breach of the principle of equal treatment, and, consequently, the sixth plea in law in its entirety, not only as regards the application for annulment, but also as regards the request that the Court exercise its unlimited jurisdiction.
459 Since all the pleas in law must be rejected and examination of those pleas has not revealed anything to justify the Court exercising its unlimited jurisdiction to reduce the fines imposed on the applicants, the Court must dismiss the action in its entirety.
Costs
460 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs incurred by the Commission, as sought by the Commission.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1. Dismisses the action;
2. Orders Deutsche Bahn AG, Schenker AG, Schenker China Ltd and Schenker International (HK) Ltd to pay the costs.
Delivered in open court in Luxembourg on 29 February 2016.
[Signatures]
Table of contents
Background to the dispute and the contested decision
Procedure before the General Court and forms of order sought
Law
1. The first plea in law: (i) infringement of Articles 4, 7 and 27(2) of Regulation No 1/2003, breach of the rights of the defence and the right to a fair hearing and (ii) an infringement of the principle of sound administration
The first part: infringement of Articles 4, 7 and 27(2) of Regulation No 1/2003, the rights of the defence and the right to a fair hearing
The submission concerning an infringement of the obligation of professional secrecy
The submission concerning an infringement of the prohibition on double representation and the principle of loyalty
The submission concerning a breach of DP’s fiduciary duties
The second part: infringement of the principle of sound administration
2. The second plea in law: infringement of Article 1 of Regulation No 141
The interpretation of Article 1 of Regulation No 141
The services affected by the AMS cartel
3. The third plea in law, concerning the Commission’s decision to hold Schenker China solely liable for the conduct of Bax Global (China)
The first part, claiming in particular an infringement of Article 101(1) TFEU and breach of the principle of personal liability
The second part: breach of Article 41 of the Charter of Fundamental Rights and the principle of sound administration, and the third part: breach of the duty to state reasons
The breach of Article 41 of the Charter of Fundamental Rights and the principle of sound administration
The breach of the obligation to state reasons
4. The fourth plea in law: errors in the calculation of the amount of the fine and an infringement of Article 27(1) and (2) of Regulation No 1/2003 and the rights of the defence
The first part, concerning errors in the calculation of the fine
The submission concerning the value of sales
– The sales made to which the AMS, CAF and PSS cartels relate
– The application of the AMS, CAF and PSS surcharges
– The existence of a cartel affecting air transport services
– Taking account of the economic harm caused
– The competitiveness factors affected
– The errors of assessment
The submission concerning the degree of gravity
The submission concerning the existence of a mitigating circumstance
The submission concerning an infringement of the principle of equal treatment
Conclusion
The second part of the fourth plea in law: infringement of Article 27 of Regulation No 1/2003 and breach of the rights of the defence
5. The fifth plea in law: infringement of Article 23(2) of Regulation No 1/2003 and breach of the principle of equal treatment, failure to comply with the 2006 Leniency Notice and error of assessment
The first part of the plea: breach of the principle of equal treatment and error of assessment
The submission that the Commission should not have granted immunity to DP
The submission concerning the use of different criteria
The submission that the Commission’s approach is liable to block access to immunity
The submission concerning unforeseeability
The second part of the fifth plea in law: failure to comply with the third paragraph of point 26 of the 2006 Leniency Notice
6. The sixth plea in law, concerning the Commission’s decision not to seek settlement
The first part of the plea: an infringement of Article 23(2) of Regulation No 1/2003 and errors of assessment
The second part of the plea: breach of the principle of equal treatment
Costs