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 — Surcharges and tariff mechanisms having an impact on the final price of services — Errors of assessment — Proof — Whether trade between Member States affected — Appreciable effect on competition — Amount of the fine — Gravity of the infringement — Proportionality — Joint and several liability — Unlimited jurisdiction)

In Case T‑264/12,

UTi Worldwide, Inc., established in Tortola (British Virgin Islands),

UTi Nederland BV, established in Schiphol (Netherlands),

UTI Worldwide (UK) Ltd, established in Reading (United Kingdom),

represented by P. Kirch, lawyer,

applicants,

v

European Commission, represented by A. Biolan, V. Bottka and G. Meessen, acting as Agents,

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, in the alternative, for annulment or reduction of the amount of the fine imposed on them in that decision,

THE GENERAL COURT (Ninth Chamber),

composed of G. Berardis, President, O. Czúcz (Rapporteur) and A. Popescu, Judges,

Registrar: L. Grzegorczyk, Administrator,

having regard to the written procedure and further to the hearing on 8 October 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 a number of companies active in the international air freight forwarding sector, including the applicants, UTi Worldwide, Inc., UTi Nederland BV and UTI Worldwide (UK) Ltd, had, in periods between 2002 and 2007, participated in various agreements and concerted practices in the international air freight forwarding 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 UTi group is composed of UTi Worldwide, a holding company active in freight forwarding, which has had its headquarters in the British Virgin Islands (United Kingdom) since 1995 and which operates through its subsidiaries, in particular UTI Worldwide (UK) and UTi Nederland, and which provide supply-chain management services, including freight forwarding, customs brokerage and warehousing services such as the coordination of shipping and storage of raw materials, components and finished goods.

3        The present case concerns only one of the four infringements referred to in paragraph 1 above, namely the advanced manifest system (‘AMS’) cartel. It does not concern the new export system (‘NES’) cartel, the currency adjustment factor (‘CAF’) cartel or the peak season surcharge (‘PSS’) cartel.

4        The cartels at issue concern the international air freight forwarding services market. According to the Commission’s description of the 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 business is segmented into domestic and international freight forwarding and into freight forwarding by air, land and sea (recital 3 of the contested decision).

5        The AMS cartel is described in recitals 131 to 163 of the contested decision. The Commission finds in those recitals that the AMS is a procedure introduced by the United States Bureau of Customs and Border Protection which requires information concerning shipments of goods imported into the United States before they arrive. The cartel relates to an AMS surcharge, the introduction of which by freight forwarders for their customers and its implementation were the subject of coordination from the beginning of 2003, in the context of significant amendments to the AMS made by the 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, in the framework of the Freight Forward International Association (called Freight Forward Europe before 1 January 2004, the ‘FFI Association’).

6        It is stated in recital 72 of the contested decision that the Commission began its investigation after an application for immunity submitted by Deutsche Post AG and other companies of the same group (‘the DP group’) under the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the Leniency Notice’). The DP group supplemented its application for immunity by statements and documentary evidence. By letter of 24 September 2007, the Commission granted the DP group conditional immunity with respect to an alleged cartel among private providers of international freight forwarding services aimed at fixing or passing on various fees and surcharges (recital 72 of the contested decision).

7        The Commission carried out unannounced inspections at the premises of various freight forwarders between 10 and 12 October 2007 (recital 74 of the contested decision).

8        On 5 February 2010 the Commission sent a statement of objections to the applicants, to which they responded (recitals 87 and 89 of the contested decision).

9        Between 6 and 9 July 2010, the Commission held a hearing in which the applicants took part (recital 89 of the contested decision).

10      In the contested decision, the Commission held, in the light of the evidence available to it, that the applicants had participated in the AMS cartel.

11      In Article 1(2)(i) of the contested decision, the Commission found that, in relation to the AMS cartel, UTI Worldwide (UK), UTi Nederland and UTi Worldwide had infringed Article 101(1) TFEU and Article 53 of the EEA Agreement by participating, from 19 March 2003 until 21 October 2003, from 21 October 2003 until 19 August 2004 and from 19 March 2003 until 19 August 2004 respectively, in a single and continuous infringement in the air freight forwarding services sector, covering the whole of the EEA and consisting in fixing prices or other trading conditions. Article 2(2) of the contested decision provides that, for that infringement, an overall fine of EUR 3 068 000 was imposed; an amount made up, first, according to Article 2(2)(i) of the contested decision, of a fine amounting to EUR 1 273 000, imposed jointly and severally on UTi Worldwide, UTI Worldwide (UK) and UTi Nederland and, second, according to Article 2(2)(j), fines whose amounts, and the entities liable for which, are as follows:

‘UTi Worldwide …: EUR 1 795 000

of which jointly and severally liable with

UTI Worldwide (UK) …: EUR 738 000 and

UTi Nederland …: EUR 954 000.’

12      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 No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’).

 Procedure and forms of order sought

13      By application lodged at the Court Registry on 7 June 2012, the applicants brought the present action.

14      On a proposal from the Judge-Rapporteur, the Court (Ninth Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of procedure provided for in Article 64 of its Rules of Procedure of 2 May 1991 requested the parties to respond to certain questions, which they did within the prescribed period. The Commission, when asked whether the General Court could use the transcripts produced by the applicants of certain confidential statements provided in the context of the leniency programme by other undertakings, stated that it opposed such use.

15      By order of 18 September 2014 adopted pursuant to, first, the first paragraph of Article 24 of the Statute of the Court of Justice of the European Union and, second, Article 65(b) and Article 66(1) of the Rules of Procedure of the General Court of 2 May 1991, the Court (Ninth Chamber) ordered the Commission to produce the confidential statements in respect of which the applicants had produced transcripts. The applicants’ lawyer was able to consult those documents at the Court Registry before the hearing.

16      The parties presented oral arguments and replied to the questions put by the Court at the hearing on 8 October 2014.

17      The applicants claim, in essence, that the Court should:

–        primarily, annul Articles 1 and 2 of the contested decision in so far as they concern the applicants;

–        in the alternative, annul Article 2 of the contested decision, in so far as it concerns them, and, accordingly, annul or reduce the amount of the fine;

–        ensure that the grounds and the operative part of the judgment to be delivered in relation to UTi Nederland and UTI Worldwide (UK) apply fully to UTi Worldwide, in its capacity as a parent company which was not involved in the facts of the case that gave rise to the adoption of the contested decision, but which was held liable for the actions of its subsidiaries pursuant to that decision;

–        order the Commission to pay the costs.

18      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicants to pay the costs.

 Law

19      The applicants put forward two pleas in law, each subdivided into three parts, in support of their claim for annulment or variation of the contested decision. Their argument will however be analysed as being subdivided, in essence, into two groups of three pleas.

20      The first group of three pleas, which are the primary pleas, concerns the proof of the applicants’ participation in the AMS cartel. The first plea alleges, in essence, an error in the assessment of the facts and the evidence. The second plea, which may conveniently be examined with the first plea, relates to the insufficiency of proof of the applicants’ participation in an agreement or concerted practice that distorted competition. The third plea alleges that the AMS cartel did not have an appreciable effect on competition.

21      The second group of three pleas, raised in the alternative, concerns the applicants’ claim for annulment or a reduction of the fine imposed on them in Article 2 of the contested decision. The fourth plea relates, in essence, to an error concerning the application of the concept of gravity within the meaning of Article 23(3) 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) and points 19 and 20 of the 2006 Guidelines. The fifth plea relates to a breach of the principle of proportionality. The sixth plea alleges an error in that the Commission imposed on UTi Worldwide, as parent company, a higher fine than that imposed on its two subsidiaries.

1.     The first group of pleas, which are the primary pleas, concerning the proof of the applicants’ participation in the AMS cartel

 The first plea, alleging, in essence, an error in the assessment of the facts and evidence and the second plea, alleging, in essence, insufficiency of proof of the applicants’ participation in an agreement or concerted practice that distorted competition

22      In the first plea, the applicants maintain, in essence, that the Commission infringed Article 101(1) TFEU and Article 53 of the EEA Agreement in that it made several errors of assessment of the facts and evidence by concluding that the applicants participated in the AMS cartel, in particular by failing to carry out a comprehensive and sufficient analysis of the evidence.

23      In the second plea, the applicants maintain, in essence, that the Commission does not have sufficiently precise and consistent evidence at its disposal to find that they engaged in an anticompetitive agreement or a prohibited concerted practice and consider, moreover, that the identified infringement was not capable of appreciably affecting trade between Member States.

24      In respect of the first plea, the Commission argues that it assessed the facts and the evidence correctly. As for the second plea, it states that it established to the requisite legal standard the applicants’ participation in an anticompetitive agreement or concerted practice and considers that the AMS cartel had an appreciable impact on trade between Member States, and that an actual effect on trade does not need to be demonstrated.

25      Those arguments seek to call into question the Commission’s findings of fact concerning the AMS cartel, made in recitals 131 to 212 of the contested decision, including that in recital 132 as regards the duration of the applicants’ participation in that cartel between 19 March 2003 and 19 August 2004. They are also directed at the Commission’s conclusion, in recitals 464 and 571 to 575 of the contested decision, that the applicants participated in an unlawful AMS cartel involving an agreement on the introduction of a surcharge and principles for setting it, the timetable for the introduction of that surcharge and the exchange of sensitive information. According to the Commission, there was also partial implementation of the agreement, accompanied by a monitoring mechanism, and measures were taken to conceal the illicit contacts. The Commission also states (recital 575 of the contested decision) that the anticompetitive object of the contacts at issue was to influence the market.

26      After surveying the case-law relating to the existence and evidence of an infringement of Article 101(1) TFEU and the Court’s duty of review, the Court must examine, in turn, the material facts and evidence that are relied on in the contested decision to establish the applicants’ participation in a cartel in breach of Article 101 TFEU and Article 53 of the EEA Agreement, the applicants’ submissions challenging the probative value and the assessment of the evidence, the legal implications that follow from the evidence and, finally, whether the identified infringement is capable of having an appreciable effect on trade between Member States.

 Survey of the case-law concerning the existence and proof of an infringement of Article 101(1) TFEU and the Court’s duty of review

27      First, so far as the existence of a cartel is concerned, Article 101(1) TFEU prohibits as being incompatible with the internal market all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market.

28      In order for there to be an agreement within the meaning of Article 101(1) TFEU, it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way (judgments of 17 December 1991 in Hercules Chemicals v Commission, T‑7/89, ECR, EU:T:1991:75, paragraph 256, and 20 March 2002 HFB and Others v Commission, T‑9/99, ECR, EU:T:2002:70, paragraph 199).

29      An agreement within the meaning of Article 101(1) TFEU can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition, even if the specific features of the restriction envisaged are still under negotiation (see, to that effect, judgment in HFB Holding and Others v Commission, cited in paragraph 28 above, EU:T:2002:70, paragraphs 151 to 157 and 206).

30      The concept of a concerted practice refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so-called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them (judgments of 8 July 1999 in Commission v Anic Partecipazioni, C‑49/92 P, ECR, EU:C:1999:356, paragraph 115, and Hüls v Commission, C‑199/92 P, ECR, EU:C:1999:358, paragraph 158).

31      Those criteria of coordination and cooperation necessary for determining the existence of a concerted practice are to be understood in the light of the notion inherent in the FEU Treaty provisions on competition, according to which each economic operator must determine independently the policy which he intends to adopt on the internal market (judgment of 5 December 2013 in Solvay v Commission, C‑455/11 P, EU:C:2013:796, paragraph 37 and the case-law cited).

32      While that requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, nonetheless, strictly preclude any direct or indirect contact between such operators by which an undertaking may influence the conduct on the market of its actual or potential competitors or disclose to them its decisions or intentions concerning its own conduct on the market where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings involved and the volume of that market (see Solvay v Commission, cited in paragraph 31 above, EU:C:2013:796, paragraph 37 and the case-law cited).

33      An exchange of information is incompatible with the EU rules on competition if it reduces or removes the degree of uncertainty as to the operation of the market in question with the result that competition between undertakings is restricted (see, to that effect, judgment of 2 October 2003 in Thyssen Stahl v Commission, C‑194/99 P, ECR, EU:C:2003:527, paragraph 81 and the case-law cited).

34      The disclosure of sensitive information removes uncertainty as to the future conduct of a competitor and thus directly or indirectly influences the strategy of the recipient of the information (see, to that effect, judgment of 23 November 2006 in Asnef-Equifax and Administración del Estado, C‑238/05, ECR, EU:C:2006:734, paragraph 51 and the case-law cited).

35      Second, as regards the taking of evidence, according to settled case-law, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of the material facts of an infringement (judgments of 17 December 1998 in Baustahlgewebe v Commission, C‑185/95 P, ECR, EU:C:1998:608, paragraph 58, and 14 October 2004 Dresdner Bank v Commission, T‑44/02, EU:T:2004:299, paragraph 59).

36      Thus, the Commission must produce sufficiently precise and consistent evidence to support the firm conviction that the infringement was committed (judgments of 28 March 1984 in Compagnie Royale Asturienne des Mines and Rheinzink v Commission, 29/83 and 30/83, ECR, EU:C:1984:130, paragraph 20, and 8 July 2008 Lafarge v Commission, T‑54/03, EU:T:2008:255, paragraph 55). The evidence adduced by the Commission must therefore permit the conclusion beyond all reasonable doubt that there was an infringement (judgment in Dresdner Bank v Commission, cited in paragraph 35 above, EU:T:2004:299, paragraphs 137 and 144).

37      However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by that institution, viewed as a whole, meets that requirement (judgments of 1 July 2010 in Knauf Gips v Commission, C‑407/08 P, ECR, EU:C:2010:389, paragraph 47, 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 180). Furthermore, where the Commission has relied on documentary evidence in support of its finding of the existence of an anticompetitive agreement or practice, the burden is on the parties who are contesting that finding before the Court not only to put forward a plausible alternative to the Commission’s view but also to allege that the evidence relied on in the contested decision to establish the existence of the infringement is insufficient (judgments in JFE Engineering and Others v Commission, paragraph 187, and 16 June 2011 Heineken Nederland and Heineken v Commission, T‑240/07, ECR, EU:T:2011:284, paragraph 52).

38      As regards the evidence which may be invoked in order to establish an infringement of Article 101 TFEU, the principle which prevails in EU law is that the evidence may be freely adduced (judgments of 8 July 2004 in Dalmine v Commission, T‑50/00, ECR, EU:T:2004:220, paragraph 72, and 12 July 2011 Hitachi and Others v Commission, T‑112/07, ECR, EU:T:2011:342, paragraph 64).

39      The items of evidence on which the Commission relies in the contested decision in order to prove the existence of an infringement of Article 101(1) TFEU must not be assessed separately, but as a whole (judgments of 14 July 1972 in Imperial Chemical Industries v Commission, 48/69, ECR, EU:C:1972:70, paragraph 68, and 8 July 2008 BPB v Commission, T‑53/03, ECR, EU:T:2008:254, paragraph 185). Different items of evidence may thus be mutually corroborative (judgment in JFE Engineering and Others v Commission, cited in paragraph 37 above, EU:T:2004:221, paragraph 275).

40      In addition, it should be remembered that, in practice, the Commission is often obliged to prove the existence of an infringement under conditions which are hardly conducive to that task, in that several years might have elapsed since the time of the material facts of the infringement and a number of the undertakings covered by the investigation have not actively cooperated with it. Whilst it is necessarily incumbent upon the Commission to establish that an unlawful agreement was concluded, it would be excessive also to require it to produce evidence of the specific mechanism by which that objective was to be attained. Indeed, it would be too easy for an undertaking guilty of an infringement to escape any penalty if it were entitled to base its argument on the vagueness of the information produced regarding the operation of an unlawful agreement in circumstances in which the existence and anticompetitive purpose of the agreement had nevertheless been sufficiently established. Undertakings are able properly to defend themselves in such circumstances provided that they have an opportunity to comment on all the evidence relied on against them by the Commission (judgment in JFE Engineering and Others v Commission, cited in paragraph 37 above, EU:T:2004:221, paragraph 203).

41      As regards the statements of other undertakings, no provision or general principle of EU law precludes the Commission from relying on them against the applicants. On the contrary, it is clear from the case-law that particularly high probative value may be attached to statements which (i) are reliable, (ii) are made on behalf of an undertaking, (iii) are made by a person under a professional obligation to act in the interests of that undertaking, (iv) go against the interests of the person making the statement, (v) are made by a direct witness of the circumstances to which they relate, and (vi) were provided in writing deliberately and after mature reflection (judgments in JFE Engineering and Others v Commission, cited in paragraph 37 above, EU:T:2004:221, paragraphs 205 to 210, and Hitachi and Others v Commission, cited in paragraph 38 above, EU:T:2011:342, paragraph 71).

42      Where a person admits that he committed an infringement and thus admits the existence of facts going beyond those which could be directly inferred from documentary evidence, that implies, a priori, in the absence of special circumstances indicating otherwise, that that person has resolved to tell the truth. Thus, statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence (judgments in JFE Engineering and Others v Commission, cited in paragraph 37 above, EU:T:2004:221, paragraphs 211 and 212; of 26 April 2007 in Bolloré and Others v Commission, T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑126/02, T‑128/02, T‑129/02, T‑132/02 and T‑136/02, ECR, EU:T:2007:115, paragraph 166; and Lafarge v Commission, cited in paragraph 36 above, EU:T:2008:255, paragraph 59).

43      Last, the Commission must also prove the duration of the infringement, since duration is a constituent element of the concept of an infringement under Article 101(1) TFEU. The principles mentioned in paragraphs 35 to 42 above are applicable in that regard (see, to that effect, judgment of 21 September 2006 in Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, C‑105/04 P, ECR, EU:C:2006:592, paragraphs 95 and 96).

44      The case-law set out in paragraphs 27 to 43 above is applicable, by analogy, to Article 53(1) of the EEA Agreement.

45      Third, as regards the Court’s duty of review, it must be recalled that the Court must carry out a comprehensive review to determine whether or not the conditions of application of Article 101 TFEU are met (see, to that effect, judgments of 11 July 1985 in Remia and Others v Commission, 42/84, ECR, EU:C:1985:327, paragraph 34, and 26 October 2000 Bayer v Commission, T‑41/96, ECR, EU:T:2000:242, paragraph 62). The Courts of the European Union must, inter alia, establish not only whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the relevant information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see judgments of 10 July 2014 in Telefónica and Telefónica de España v Commission, C‑295/12 P, ECR, EU:C:2014:2062, paragraph 54 and the case-law cited, and Dresdner Bank v Commission, cited in paragraph 35 above, EU:T:2004:299, paragraph 67 and the case-law cited).

 The material facts and the evidence set out in the contested decision

46      The evidence adduced in the contested decision in order to establish the conclusion of an agreement in principle between freight forwarders on the introduction of an AMS surcharge, the subsequent exchange of information and an attempt to agree a uniform surcharge amount or to set a range of charges covers, first, documentary evidence, namely the minutes of meetings held within the FFI Association and emails and, second, the statements of certain freight forwarders in their respective leniency applications.

47      The first fact relied on is a meeting held in London on 19 March 2003 by the FFI Association Airfreight Committee (recitals 145 to 147 of the contested decision) in which a representative from the UTi group participated, as is stated in the minutes of that meeting. Those minutes, cited in recital 146 of the contested decision, refer to an agreement according to which ‘customers should be charged for the additional costs faced by forwarders on the implementation of additional security measures’. According to the action points of those minutes, there was an agreement that the ‘[FFI Association] should charge the customer for additional work load as a result of the security measures’ and that the ‘[FFI Association] should not use the charges as commercial advantage’. The fact that that part of the agreement was the manifestation of a joint intention not to use the new surcharge as a means of competition is confirmed by the statement of [confidential], (1) cited in recital 147 of the contested decision, which refers to the fact [confidential].

48      The second fact relied on concerns the presentation of the conclusions of the meeting of 19 March 2003 by the representative from the Panalpina group, at the meeting of the CEO Committee (Committee of Chief Executive Officers) on 8 April 2003 in Brussels, at which the UTi group was also represented (recitals 148 and 149 of the contested decision). That presentation, referred to in recital 148 of the contested decision, indicated that the FFI Association had recognised that the customers should be charged for the additional costs linked to the AMS. 

49      The third fact relied on is a meeting of the FFI Association Airfreight Committee on 21 October 2003 in Brussels (recitals 151 and 152 of the contested decision), at which two individuals represented the UTi group, according to the minutes of that meeting. Those minutes, cited in recital 152 of the contested decision, indicate that the meeting’s participants ‘discussed about charges for the additional security measures required by the future AMS legislation’. It is also noted at recital 152 of the contested decision that the statement of [confidential] indicated that [confidential]. It is added that that information is confirmed by an internal email of [confidential] of 9 January 2004 and the statement of [confidential], mentioning [confidential].

50      The fourth fact relied on is an FFI Association Airfreight Committee meeting of 24 March 2004 in Basle (recitals 153 and 154 of the contested decision), at which the UTi group was represented, according to that meeting’s minutes. The Commission states in recital 154 of the contested decision that, according to the statement [confidential] that it emerges from an internal [confidential] that that agreement is not contained in the minutes because the undertakings were not allowed to talk about prices.

51      The fifth fact relied on is a CEO Committee meeting which took place on 5 May 2004 in Brussels (recital 155 of the contested decision). The Commission states that the representative from the Panalpina group gave a presentation at that meeting on the activities of the FFI Association Airfreight Committee, informing the participants that the Airfreight Committee had reached agreement that members should be ready to put into effect the AMS system for the entire United States as from 13 August 2004.

52      The sixth fact relied on is an ongoing exchange of information on the intended amounts for the AMS surcharge (recitals 156 and 157 of the contested decision) which is illustrated, according to the Commission, first, by an internal email [confidential] of 5 August 2004 recording the feedback from several freight forwarders ‘in regards to the fee they will charge to their customers’ and complaining of inability to agree on a uniform fee (recital 156 of the contested decision), second, by an internal UTi group email of 3 August 2004 that ‘UTi intended to follow the [FFI Association] guideline’ to charge EUR 8 (recital 157 of the contested decision) and, third, by an internal [confidential] email of 5 August 2004 referring to a contact with the Exel group and the fact that a surcharge of EUR 8 had been agreed by the ‘major global players’ (recital 157 of the contested decision).

53      The seventh fact relied on is the holding of a conference call of the FFI Association Airfreight Committee on 19 August 2004, namely after the launch by the United States authorities of AMS system on 13 August 2004 (recitals 158 to 162 of the contested decision), and at which the UTi group was represented, as is clear from the minutes of that conference call. Those minutes, cited in recital 159 of the contested decision, state that ‘the group is holding firm on charging to the customers’, then stating the rates applied by various participants, including UTi group (‘UTi: Worldwide EUR 8/USD 10 with some adaptations in certain markets’). It also took note of ‘Cases of non-compliance’ by mentioning specific examples. Furthermore, the Commission refers, in recital 159 of the contested decision, to the statement of [confidential], that [confidential] and, in recital 161 of that decision, to the statement of [confidential], showing [confidential].

 The submissions relating to the probative value of the evidence

54      The applicants’ arguments concern, in essence, the fact that the Commission did not take account of: the fact that the US authorities had formally adopted the rules for the AMS only in the course of 2004; the fact that the Commission itself called into question the probative value of certain evidence in the contested decision; errors on the scope of the discussions within the FFI Association; the absence of evidence of an agreement on a price or on a range of prices; the failure to have regard to the selective imposition of the AMS surcharges; the disregard of evidence concerning a cartel between the dominant freight forwarders; and the disregard of evidence showing that the applicants set their AMS surcharges independently.

–       The fact that the US authorities formally adopted the rules for the AMS only in the course of 2004

55      According to the applicants, several items of evidence, including the minutes of the meeting of 19 March 2003, the cornerstone of the Commission’s argument, must be rejected on the grounds that during part of the duration of the infringement, the AMS regulations were not yet in force, since they were adopted by the United States authorities on 4 March 2004 and came into force on 13 August 2004.

56      In that regard, it should be noted that the Commission incorporated those facts into its analysis. Thus it is stated in recital 134 of the contested decision that the amendment which made significantly more burdensome the freight forwarders’ obligation to pass information to the United States authorities in relation to consignments before their arrival in the US was introduced for air freight only on 4 March 2004.

57      As the Commission states, freight forwarders had been informed of the future introduction of those measures well before 4 March 2004. The Commission states in that connection, without being contradicted by the applicants, that the introduction of the AMS procedure was provided for in the United States Trade Act of 2002. As the Commission also notes, it is apparent from the statements of [confidential] that [confidential] which the applicants have again not disputed. This is moreover confirmed by the arguments of the applicants themselves when they claim that the discussions between the freight forwarders during the period of the infringement concerned the technical aspects of the expected measures.

58      Further, as noted in recital 583 of the contested decision, even though, as of 19 March 2003, the rules governing the AMS procedure were not in the public domain, this did not prevent freight forwarders from agreeing on certain specific parameters.

59      In that context, it should be recalled that, in accordance with the case-law cited in paragraph 32 above, it is strictly prohibited that there should be any direct or indirect contact between operators of such a kind as to either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor their decisions or intentions concerning their own conduct on the market, where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market.

60      In the present case, as the Commission rightly points out, if the collusive practice had not existed, freight forwarders would have each reacted independently to the AMS procedure expected from the US authorities, without any certainty about the behaviour of their competitors regarding the possibility of passing on the increased costs to the customers. Even for the period of the cartel during which the AMS surcharge was not yet in force, the freight forwarders had already been able to take account of the coordination in that they did not pass on the costs related to the AMS to customers in freight forwarding contracts entered into during this period.

61      Furthermore, the concerted action on an element of the composition of the final price can have an impact on the conduct of the undertakings on the market, especially in sectors with low margins, such as freight forwarding, as stated in recital 869 of the contested decision and examined further below.

62      At the hearing, the applicants again referred to the judgment of 16 September 2013 in Wabco Europe and Others v Commission (T‑380/10, ECR, EU:T:2013:449), which shows, according to the applicants, that, in order to establish a restriction of competition, competition between the parties concerned should be possible, which it was not in this case, at least during part of the period at issue, because the AMS regulations were not applicable.

63      In paragraphs 104 to 121 of the judgment in Wabco Europe and Others v Commission, cited in paragraph 62 above (EU:T:2013:449), the Court held, in essence, that the Commission had not proved the existence of an agreement on a specific market for a certain period since it had not been established that more than one undertaking active on that specific market was present at the meetings relied on during that period.

64      However, the circumstances of that case can be distinguished from those at issue in the present case. It is not disputed that the undertakings present at the meeting of 19 March 2003 — at which it was agreed in principle to pass on to freight forwarders’ customers the additional costs which would be incurred by the introduction of the AMS regulations and not to compete in respect of those costs — were all active on the market of international freight forwarding services by air.

65      The fact that the date of application and the specific parameters of the AMS system were not definitely known on 19 March 2003 and for a part of the period of the infringement after that date is irrelevant for the purposes of characterising the object of the discussions between the competing freight forwarders from 19 March 2003. The case-law cited in paragraph 32 above confirms that the collusive conduct caught by Article 101(1) TFEU also includes conduct which relates to practices to be adopted in the future, which is, moreover, generally the case where price-fixing cartels are concerned.

66      Moreover, as the Commission stated at the hearing, it is clear from the case-law that the mere exchange of commercial information between competitors in order to prepare an anticompetitive agreement may already be enough to prove the existence of a concerted practice within the meaning of Article 101(1) TFEU (see, to that effect, Solvay v Commission, cited in paragraph 31 above, EU:C:2013:796, paragraph 40). A fortiori, the conclusion of an anticompetitive agreement which relates to the future is caught by that provision.

67      Accordingly, as is stated in recitals 583 and 584 of the contested decision, the question of whether the United States authorities had not yet officially adopted the AMS rules during a part of the period of the infringement is not decisive where it is established that the freight forwarders agreed to a restriction of competition in the future.

68      It follows that the timetable for the actual implementation of the AMS rules does not call into question the relevance and validity of the evidence relied on by the Commission. This submission must therefore be rejected.

–       The fact that the Commission itself called into question the probative value of certain evidence

69      According to the applicants, in recitals 143 and 568 of the contested decision, having acknowledged the scattered and fragmented nature of the minutes, the Commission itself concedes that they constitute only prima facie evidence.

70      It is stated in recital 143 of the contested decision that ‘the content of the discussions was not reflected for the most part in the official minutes of [the FFI Association], as the competitors were aware of the fact that they were not allowed to hold pricing discussions during the meetings’ and that ‘this is confirmed by some emails reporting on the results of the meetings’.

71      Recital 568 states the following:

‘Although there may have been in some instances pieces of inchoate evidence, such evidence has to be viewed in conjunction with other evidence supplementing and substantiating such evidence. The facts set out in Section 4.2 constitute sufficient evidence for the establishment of the AMS cartel conduct as set out in this Decision.’

72      Contrary to what the applicants claim, it is not clear from those recitals that the Commission considers the minutes to be scattered and fragmented. The Commission observes however that those minutes must be assessed not in isolation, but as part of a body of evidence composed of those minutes and emails contemporaneous to the meetings. That approach is consistent with the case-law referred to in paragraphs 37 and 39 above.

73      The applicants claim, further, that there is a contradiction within the contested decision, in particular in recitals 141, 143, 178, 184 and 176, in so far as, in those recitals, the Commission states, on the one hand, that during the meeting of 19 March 2003, the freight forwarders agreed on charging customers for the cost of the AMS’s entry into force and, on the other hand, that the minutes did not accurately or completely reflect the discussions and that they are vague and should be interpreted or supplemented using the content of emails or statements.

74      In that regard, it is clear that the applicants’ reading of the contested decision is again selective and that their argument must be rejected for the same reason as stated in paragraph 72 above.

75      Last, it should be recalled that the minutes of the meetings are contemporaneous notes of the infringement at issue. For certain meetings, namely those of 19 March and 21 October 2003 and the conference call on 19 August 2004, they are relatively detailed. Their probative value is therefore high.

76      The submission must therefore be rejected.

–       The alleged errors on the scope of the discussions within the FFI Association

77      The applicants claim that there were multiple errors in the Commission’s reading of the evidence examined in paragraphs 47 to 53 above which made it possible, according to the Commission, to determine the content of various meetings of and correspondence between the freight forwarders from 19 March 2003 until 19 August 2004. Those arguments overlap in part with the arguments advanced in the context of other complaints. A number of arguments which concern the content of the meetings should be examined together in relation to this submission while, for the sake of brevity, the other arguments will be dealt with in the context of other submissions examined below.

78      As regards the meeting of 19 March 2003, the applicants argue that the freight forwarders expected cargo carriers to impose their own AMS fees. Therefore, in the applicants’ view, it cannot be inferred from the minutes of that meeting that there was an anticompetitive agreement, but rather an agreement amounting to a general statement from the members of the association directed to looking after their own interests.

79      In addition, the minutes of the CEO Committee meeting of 8 April 2003 do not record any discussion or agreement concerning an AMS surcharge, thus disproving the Commission’s theory of collusion. Furthermore, the alleged agreement of 19 March 2003 was superseded by the discussion which took place. The same is true for the meeting of 21 October 2003, which did not have any collusive object and also rendered the alleged agreement of 19 March 2003 inoperative.

80      Moreover, the applicants deny that the meeting of 24 March 2004 had an anticompetitive object and state in particular that the minutes of that meeting make no mention of the AMS. It is not sufficient for the Commission to rely in that regard on the unilateral declarations of a freight forwarder.

81      Moreover, the minutes of the CEO Committee meeting of 5 May 2004 do not contain any evidence from which the existence of collusion can be inferred.

82      Finally, the conference call on 19 August 2004 related only to an exchange of information concerning past conduct.

83      In that regard, as a preliminary point, it should be recalled that, where the Commission has in its possession contemporaneous evidence of certain meetings, it is for the applicants to provide an alternative explanation, as noted in recital 486 of the contested decision. Moreover, when pieces of evidence contemporaneous to the facts show that there has been concerted action between companies on their conduct in the market, the burden is on the undertakings not only to put forward a plausible alternative to the Commission’s view but also to show that the evidence relied on in the contested decision to establish the existence of the infringement is insufficient (see, to that effect, judgment in JFE Engineering and Others v Commission, cited in paragraph 37 above, EU:T:2004:221, paragraphs 186 and 187).

84      In the present case, first, as regards the meeting of 19 March 2003, the applicants’ argument that it is apparent from the minutes of that meeting that freight forwarders expected cargo carriers to impose on them their own AMS fees cannot suffice.

85      That does not call into question the clear language of the minutes of the meeting of 19 March 2003. As stated in paragraph 47 above, those minutes refer explicitly, in the action points, to the fact that the FFI Association should not use the surcharges as a competitive advantage and that they should be charged to the customers. The applicants therefore cannot credibly assert that those minutes contain only a general statement from the members of the association directed at defending their interests against air cargo carriers. As already noted in paragraph 60 above, in the absence of fixing a common approach, freight forwarders would each have had to react independently regarding the possible assumption of an additional input cost.

86      Contrary to what the applicants claim, point 11.1 of those minutes, which states that it was necessary to ‘inform customers that security charges [would] go with the freight’ does not contradict either the contention that there was an anticompetitive agreement or the clear content of the action points in the minutes observed by the Commission.

87      In addition, as indicated in paragraph 47 above, the anticompetitive object of that meeting is clear not only from the wording of the minutes of that meeting, but also from the statement of [confidential] confirming it.

88      The Commission therefore did not err in concluding, in particular in recital 141 of the contested decision, that the minutes of the meeting of 19 March 2003 recorded an agreement between freight forwarders to pass on the additional costs caused by the future AMS regulations to their customers through the introduction of an AMS surcharge which should have at least covered the costs linked to the application of the AMS, and that the objective was not to compete in respect of that element of the price of their services.

89      Second, regarding the CEO meeting of 8 April 2003, the absence of a description of the contents of the discussions relating to the AMS surcharges in the minutes is not decisive since the Commission’s analysis is based on the content of the presentation by the representative of the Panalpina group, a copy of which was attached to the minutes. The applicants do not argue that that presentation did not take place, but merely state that the page on which the Commission relies is nothing more than a reproduction of the minutes of the meeting of 19 March 2003. Yet that rather confirms the Commission’s contention that the agreement of 19 March 2003 was presented to the CEOs at the meeting of 8 April 2003 and was of some importance, which is also confirmed by the statement [confidential], as noted in recital 149 of the contested decision.

90      Moreover, as the applicants state, it is true that the minutes refer in a general way to surcharges. However, the fact that the minutes make reference in that regard to the fact that the association should ‘explore the possibility of asking the carriers for collection fees’ is not conclusive proof that the discussions related only to the negotiations with airlines, given the evidence constituted by the presentation from the representative of the Panalpina group on the subject of charging the customers a fee. For the same reason, the reference to a possible collection fee to be negotiated with the air cargo carriers in those minutes does not in any way prove that the agreement of 19 March 2003 became inoperative.

91      In any event, and as far as discussions about the negotiation of a collection fee with air cargo carriers should be considered legitimate, it should be recalled, as the Commission correctly observes, that the presence of other legitimate reasons for discussions does not preclude the occurrence of illegitimate discussions. Discussions on market-sensitive information, even assuming that they were held in conjunction with discussions on non-sensitive subjects, are clearly such as to establish coordination on the market and to reduce uncertainty over the conceivable conduct of competitors (see, to that effect, judgment of 16 June 2011 in Heineken Nederland and Heineken v Commission, T‑240/07, ECR, EU:T:2011:284, paragraph 193).

92      Third, regarding the meeting of 21 October 2003, the fact that the minutes of that meeting record that certain freight forwarders would probably charge the additional costs to the shipper at the point of origin or according to another method does not call into question the Commission’s analysis that that meeting also had an anticompetitive object.

93      As noted in recital 152 of the contested decision, the minutes of that meeting referred to a discussion about the costs occasioned by the future AMS legislation. As stated in paragraph 49 above, the fact that the amount of the surcharges was discussed is confirmed by contemporaneous evidence, namely an internal email of 9 January 2004 [confidential]. Contrary to what the applicants claim, that document refers to the context of the FFI Association with particular reference to the ‘last FFI meeting’ and not to alleged parallel discussions. Moreover, the [confidential] statement also confirms [confidential].

94      Moreover, the applicants’ argument that that meeting also rendered the agreement of 19 March 2003 inoperative cannot succeed. That meeting included inter alia the discussion of whether or not an AMS surcharge was to be charged to the shipper and therefore related to detailed rules for the implementation of the agreement in principle to impose the costs of the new procedures on the customers. Similarly, regarding the assertion that the minutes of the meeting of 21 October 2003 implied that the participants in the discussion were going to examine individually the options open to them and, at the FFI Association level, that it would be necessary to continue to influence the decision-making process in the United States and the air cargo carriers, the Commission is correct in holding that it does not follow that the initial agreement had been abandoned. At most, it points to some uncertainties as regards its implementation.

95      As regards agreements of an anticompetitive nature or concerted practices reached at meetings of competing undertakings, an infringement of Article 101(1) TFEU is constituted when those meetings have as their object the restriction, prevention or distortion of competition and are thus intended to organise artificially the operation of the market. The liability of a particular undertaking in respect of the infringement is properly established where it participated in those meetings with knowledge of their anticompetitive object, even if it did not proceed to implement any of the measures agreed at those meetings. The greater or lesser degree of regular participation by the undertaking in the meetings and of completeness of its implementation of the measures agreed is relevant not to the establishment of its liability but rather to the extent of that liability and thus to the severity of the penalty (judgments of 15 October 2002 in Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, ECR, EU:C:2002:582, paragraphs 509 and 510, and 28 June 2005 Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C 213/02 P, ECR, EU:C:2005:408, paragraph 145).

96      The Commission therefore did not err in considering that the meetings of 8 April and 21 October 2003 showed a succession of contacts within the framework of the AMS cartel.

97      Fourth, concerning the meeting of 24 March 2004, the Commission does not dispute that the minutes of that meeting make no mention of the AMS. However, as has been noted in paragraph 50 above, the Commission also relies in that connection on an internal email [confidential], explaining the absence of anticompetitive content in the minutes of that meeting, and on the statement [confidential].

98      As regards [confidential] internal email, the applicants’ argument that it is not established that it refers to the meeting of 24 March 2004 cannot succeed. Since it dates from early April 2004, it is clearly contemporaneous to the meeting in question, so that the Commission could consider that the minutes to which it explicitly refers are those of the most recent meeting of the FFI Association. Furthermore, this is confirmed by the statement of [confidential], which also refers to [confidential].

99      The Commission was entitled therefore to find that the meeting of 24 March 2004 was also a further contact in the context of the AMS cartel.

100    Fifth, regarding the CEO meeting of 5 May 2004, the minutes of that meeting contain no concrete indicia of discussions on the AMS surcharges. The contested decision does not, moreover, refer to any other evidence corroborating the content of the discussions which took place that day.

101    Nevertheless, contrary to what the applicants claim, it does not follow that the minutes of that meeting call into question the Commission’s contention that there were ongoing discussions between the freight forwarders on the implementation of the initial agreement of 19 March 2003.

102    According to the applicants, those minutes show only that the freight forwarders had discussions on the technical aspects of the AMS regulations, on the fees that would be charged by the air cargo carriers and on the position to be adopted by the freight forwarders vis-à-vis those carriers, which is legitimate conduct for a professional association.

103    However, those minutes record the presentation of the representative from the Panalpina group, already noted in paragraph 51 above, concerning an agreement in the Airfreight Committee that members should be prepared to implement the AMS system for the entire territory of the United States from 13 August 2004, and not according to a possible phased implementation scenario by region (East Coast, Central, West Coast) under the implementation scheme provided for by the legislation, as stated in recital 135 of the contested decision. The adoption of the method for such a general implementation starting from 13 August 2004 is confirmed in respect of certain freight forwarders in the minutes of the meeting of 19 August 2004, discussed below.

104    In those circumstances, the Commission did not err in holding that the meeting of 5 May 2004 formed part of the ongoing discussions regarding the implementation of the agreement of 19 March 2003, irrespective of whether the discussions held on that date had in part a legitimate purpose (paragraph 91 above).

105    Sixth, as regards the conference call on 19 August 2004, the applicants’ argument that the minutes of this meeting merely recorded an exchange of information regarding the conduct adopted on the market in the past does not call into question the Commission’s analysis that the meeting had an anticompetitive object.

106    In the first place, it cannot be inferred from the content of the minutes in question (paragraph 53 above and recital 159 of the contested decision) that the surcharges communicated at that moment by various freight forwarders present were nothing but past data that were not going to continue to be applied.

107    In the second place, as the Commission rightly argues, the analysis of ‘cases of non-compliance’ also refers to behaviour to be adopted in the future to report such cases of non-compliance. As noted in recital 161 of the contested decision, the [confidential] statement confirms [confidential].

108    In the third place, the information exchanged was very recent and therefore sensitive, for example that relating to the failure by the Expeditors group and the D group, acquired by the DP group, to charge surcharges.

109    The Commission therefore did not err in holding, in particular in recital 159 of the contested decision, that the meeting of 19 August 2004 was part of the ongoing discussions between the freight forwarders on the implementation of the agreement of 19 March 2003 and that it involved an exchange of information relating to the fees that each of them applied in respect of the AMS as well as a discussion of cases of non-compliance with the agreement.

110    It follows from the foregoing that the submission concerning errors with regard to the scope of discussions within the FFI Association must be rejected.

–       The lack of evidence of an agreement on the prices or price range

111    The applicants’ argument that the members of the FFI Association did not agree on a price or a range of prices seeks to call in question, in particular, recital 142 of the contested decision in which the Commission expressed the following view:

‘The freight forwarders attempted to agree a uniform charge/range of charges but they did not ultimately succeed in agreeing an exact amount/range. The companies … further concerted their market behaviour and exchanged the individual amounts they intended to charge in the market for the fulfilment of the AMS requirements, as well as the charges they began to charge when the AMS procedure was launched (see recital 146 [relating to the meeting of 19 March 2003]).’

112    The applicants also dispute what is stated in recital 212 of the contested decision in so far as the Commission holds there that ‘the final fees applied by individual undertakings were within the range of fees previously discussed among the competitors’ and that ‘their fees amounted at least to [EUR] 8 which is broadly in line with the initial agreement among undertakings not to compete with each other on the level of the surcharge and to set the surcharge at least at a level covering the costs of its introduction’. According to the applicants, the AMS surcharges imposed varied from EUR 8 to 25, a range which does not demonstrate the existence of any collusion.

113    In that regard, the applicants argue correctly that the minutes of the meeting of 19 March 2003 are not evidence of a discussion about specific AMS surcharge amounts. The reference to that meeting made in recital 142 of the contested decision (paragraph 111 above) is therefore not appropriate since, at that stage, the AMS procedure had not yet been launched.

114    It must however be noted that, in the contested decision, the Commission did not claim that there was an agreement on the exact level or the range of prices, but on the fact that freight forwarders had agreed on the principle of introducing AMS fees and certain rules for the introduction of those fees at the meeting of 19 March 2003.

115    It cannot be denied that the object of the initial agreement of 19 March 2003 was the control of the conditions for passing on an anticipated rise in input costs, in particular through an agreement to charge the input cost of the AMS surcharge to customers and not to use the surcharge as a means of competition between freight forwarders. As the Commission maintains in recital 467 of the contested decision, there was consequently an agreement that the minimum surcharge should be set at the level of freight forwarders’ costs for complying with the AMS procedure.

116    The Commission also held (recitals 141, 146 and 464 of the contested decision) that, subsequently, the freight forwarders exchanged information regarding their conduct in the market, which the applicants do not dispute. On the contrary, the applicants claim before the Court that the evidence relating to the period from July to August 2004 shows that ‘while exchanging information’, the freight forwarders were actually competing on the AMS surcharge amount. The Commission was entitled therefore to hold that such exchanges of information made it possible to reduce the uncertainty about the conduct that competitors were going to adopt without thereby contradicting the contention that there was an initial agreement in principle.

117    The fact that the freight forwarders ultimately set AMS surcharges at different levels, ranging from EUR 8 to 25 in fact, or did not apply such a surcharge in some cases, does not change the fact that they agreed at the meeting of 19 March 2003 to introduce an AMS surcharge to be charged to their customers and not to compete in this respect, that they exchanged information on the surcharge to be applied afterwards and that they discussed the possibility of agreeing on a uniform amount. That latter fact is apparent in particular from the statements of [confidential] cited in recitals 152 and 154 of the contested decision. As was pointed out in paragraph 29 above, an agreement within the meaning of Article 101(1) TFEU can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition.

118    Furthermore, the fact that ultimately the applicants or other freight forwarders either set surcharges at differing levels or, in certain cases, did not apply any surcharge at all, concerns the actual application of the cartel and its effects rather than its existence. There is no need to take account of the actual effects of an agreement such as that found in the present case once it is apparent that it has as its object the prevention, restriction or distortion of competition within the internal market (see, to that effect, judgment of 20 March 2002 in Dansk Rørindustri v Commission, T‑21/99, ECR, EU:T:2002:74, paragraph 137 and the case-law cited).

119    The Commission therefore did not err in holding in recital 464 of the contested decision that the freight forwarders coordinated their market behaviour by agreeing to an AMS surcharge and by deciding not to use it as a means of competition and in holding that they discussed the possibility of agreeing a uniform amount for the surcharge. The Commission was also entitled to hold that they agreed a range of prices and exchanged information on the monitoring of the introduction of the surcharge.

120    It follows that the submission must be rejected.

–       The selective imposition of AMS surcharges by the applicants

121    The applicants assert that the Commission disregarded the fact that they publicly announced on 13 August 2004 a standard AMS surcharge of EUR 8 per shipment and that the various companies of the UTi group thus imposed different surcharges according to the customer, depending on local conditions at the point of origin. They also argue that they used the AMS for commercial advantage by charging fees whose average amount was about EUR 7, less than the supposed official amount of EUR 8, and which could be as little as EUR 0.50, depending on the customer.

122    In that regard, the applicants state that they collected USD 421 668 or EUR 326 783 in AMS surcharges, that is an average surcharge of USD 9.80 or EUR 7.59, and they claim to have imposed the AMS surcharges on nearly 37% of cargo over the period from January 2005 to December 2007.

123    However, it must be noted that those statements are not supported by any evidence that provides corroboration. The evidence to which the applicants refer and which they placed on file during the administrative procedure makes it possible only to establish that various companies in various parts of the world are part of the UTi group.

124    Furthermore, this submission concerns, like the previous one, the application and effect of the initial agreement and the discussions that followed, rather than its existence.

125    In addition, the applicants state that the average AMS surcharge amounted to EUR 7.59, which is close to the amount of EUR 8 referred to and applied by other freight forwarders. They also confirm that the standard surcharges which they were going to apply amounted in fact to EUR 8, which is also noted in the minutes of the conference call of 19 August 2004 (paragraph 53 above).

126    Finally, the fact of charging a surcharge other than that which was the subject of discussions between competitors does not prove that the applicants disregarded the initial agreement, the range indicated or the information exchanged between freight forwarders.

127    As regards agreements of an anticompetitive nature which, as in the present case, become evident at meetings of competing undertakings, an infringement of Article 101 TFEU is constituted when those meetings have the object of restricting, preventing or distorting competition and are thus aimed at artificially organising the functioning of the market. In such a case, it is sufficient for the Commission to establish that the undertaking concerned participated in meetings during which agreements of an anticompetitive nature were concluded in order to prove that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward indicia to establish that its participation in those meetings was without any anticompetitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (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, paragraph 81, and 25 January 2007 Sumitomo Metal Industries and Nippon Steel v Commission, C‑403/04 P and C‑405/04 P, ECR, EU:C:2007:52, paragraph 47).

128    The reason underlying that rule is that, having participated in such a meeting without publicly distancing itself from what was discussed, an undertaking has given the other participants reason to believe that it subscribed to what was decided there and would comply with it (judgments in Aalborg Portland and Others v Commission, cited in paragraph 127 above, EU:C:2004:6, paragraph 82, and Sumitomo Metal Industries and Nippon Steel v Commission, cited in paragraph 127 above, EU:C:2007:52, paragraph 48).

129    In the absence of public distancing on the part of the applicants from the agreement in principle or the anticompetitive content of the meetings relating to subsequent implementation and exchange of information, it can be assumed, subject to proof to the contrary, which it is for the applicants to adduce, that the undertakings taking part in the concerted arrangements and who remain active on the market take account of the information exchanged with their competitors when determining their conduct on that market (see, to that effect, judgment in Hüls v Commission, cited in paragraph 30 above, EU:C:1999:358, paragraph 162; see, also, judgment in Lafarge v Commission, cited in paragraph 36 above, EU:T:2008:255, paragraph 259 and the case-law cited).

130    The submission therefore does not call into question either the relevance or the validity of the evidence relied on by the Commission and must therefore be rejected.

–       The absence of distinction between membership of the FFI Association and the adoption of anticompetitive conduct

131    According to the applicants, the Commission is mistaken that their mere membership of the FFI Association means that they participated in the AMS cartel. The Commission should have, in particular, taken into account, first, the fact that there was a small circle of freight forwarders within that association, which were the only ones guilty of participating in the cartel, the applicants not being included, that circle being made up of the DP, Exel, Schenker, Panalpina and the Kühne + Nagel groups and, second, that the FFI Association was supervised by lawyers and consultants to ensure that practices were legally compliant.

132    As a preliminary point, it should be made clear that the FFI Association was not held liable in the contested decision. Nor were the applicants held liable by virtue of their membership of that association alone, but by virtue of their presence at certain meetings and their participation in discussions which were held within the framework of that association.

133    As to the existence of a small circle which alone was responsible for the anticompetitive practices in question, of which the applicants were not part, they first argue that their non-involvement is demonstrated by the fact that the [confidential] statements barely mention the UTi group and do not mention any of its employees. The same is true of [confidential] statement when it refers to the AMS cartel. Furthermore, it emerges instead from the [confidential] statements and [confidential] internal email dated 1 October 2001 that the core of dominant freight forwarders agreed from that time on the fact that the surcharges imposed by air cargo carriers were to be passed on to the consumer. In addition, the applicants maintain that the dominant freight forwarders’ emails relied on in the contested decision, in order to establish the content of the discussions and the existence of the AMS cartel, cannot be used to demonstrate the applicants’ participation in that cartel, because those emails only support their alternative explanation that the freight forwarders belonging to the circle of dominant freight forwarders within the FFI Association reached agreements in bilateral and multilateral discussions that did not involve the applicants. The different light cast, according to the applicants, on the facts is also supported by the statement of [confidential], about [confidential]. In addition, the applicants consider that the fact that the FFI Association had no power to influence the freight forwarders is demonstrated, first, by the failure of numerous freight forwarders to charge an AMS surcharge and, second, by the fact that others fixed widely varying amounts.

134    In that respect, as regards the [confidential] statements, [confidential] statement of [confidential] refers to the applicants’ employees on several occasions, namely, in particular when referring to the participants in the Airfreight Committee, at the meeting of 19 March 2003, at the meeting of 8 April 2003 and in the conference call on 19 August 2004. Moreover, it is immaterial that there is only a very small number of references to the applicants, given the volume of those statements, or that the statement of [confidential] does not explicitly refer to them because, in any event, the starting point of the Commission’s analysis is the presence of the applicants at meetings with an anticompetitive object, as attested to by the minutes and not the references to their group or their employees in the statements of other freight forwarders.

135    Furthermore, as regards the argument that the dominant freight forwarders had bilateral or multilateral contacts between themselves, not involving the applicants, an argument in support of which numerous pieces of evidence were placed in the administrative file, it must be noted that the Commission states in recital 482 of the contested decision that it took account only of the discussions held during the six meetings of the FFI Association and of evidence substantiating the content of those discussions in order to establish the existence of the cartel. It in no way relied on bilateral or multilateral discussions which some freight forwarders, members of an alleged inner circle in that association, could have held amongst themselves.

136    In those circumstances, the Commission cannot be criticised for not including other possible agreements in the contested decision. Such an argument, even if well founded, cannot have a bearing on the lawfulness of the contested decision (see, to that effect, judgment of 27 September 2012 in Koninklijke Wegenbouw Stevin v Commission, T‑357/06, ECR, EU:T:2012:488, paragraphs 41 and 42).

137    Moreover, the existence of numerous bilateral and multilateral emails between certain freight forwarders does not call into question the evidence of the UTi group’s participation in meetings with an anticompetitive object within the FFI Association, whose content is confirmed by minutes of meetings and the statements of several freight forwarders.

138    Furthermore, it cannot be inferred from the statements of undertakings relied on by the applicants that the AMS surcharges were solely the subject of bilateral discussions, held outwith the UTi group’s presence at the material time.

139    In that regard, as to whether a single cartel within a smaller circle of freight forwarders could be inferred from the statements [confidential], the arguments made by the applicants are not convincing. The statement [confidential] reads, in particular, as follows:

‘[confidential]’

140    That statement confirms the Commission’s analysis that discussions regarding the AMS surcharge were held within the framework of the FFI Association.

141    It has also not been established that the reference to ‘major freight forwarders’ in some statements, including this one, could not include the UTi group. It seems natural that the freight forwarder at issue should emphasise the presence of all major freight forwarders. However, that does not rule out the possibility that freight forwarders who were regarded as secondary also participated.

142    Moreover, as to whether the [confidential] statement [confidential] refers to an [confidential], it should be noted that, contrary to what the applicants claim, any other cartel which was formed before the period covered by the AMS cartel referred to in the contested decision and which involved certain freight forwarders in certain types of surcharges does not exclude the possibility of concerted action within the FFI Association at a later date. In any event, [confidential].

143    While it is true that [confidential] statement [confidential] does not explicitly mention the UTi group, it must be noted that mention is made of a fairly general description of [confidential]. Those statements were subsequently supplemented in other statements. That statement, however, already clearly distinguishes [confidential].

144    As regards the argument based on the fact that AMS surcharges were either not charged by freight forwarders or, where they were in fact charged, the amounts of those surcharges varied widely, that also cannot succeed. As already noted in paragraph 118 above, that argument relates to the actual application of the agreement and does not call into question the Commission’s findings relating to the existence of an agreement in principle and an exchange of sensitive information between freight forwarders on their conduct regarding the AMS surcharges on the market.

145    Consequently, the applicants’ argument alleging the existence of discussions about AMS surcharges within a small circle of freight forwarders, even if it were well founded, does not call into question the assessment made by the Commission of the evidence mentioned in paragraphs 46 to 53 above.

146    Last, as regards the argument relating to the supervision of the FFI Association by lawyers and consultants, even the presence at certain FFI Association meetings of the representatives of other organisations active in the sector, it is also irrelevant, since legal advice or advice from other third party consultants do not guarantee that the participants will refrain from discussing anticompetitive subjects and therefore do not call into question the Commission’s findings of fact based on the content of the minutes, emails and statements of freight forwarders. The characterisation of the facts as they emerge from the evidence available to the Commission is compelling.

147    The submission that the Commission failed to take into consideration the distinction between the applicants’ membership of the FFI Association and the adoption of anticompetitive conduct must therefore also be rejected.

–       The fact that the applicants had freely set the AMS surcharges

148    The applicants object to the presumption in recital 471 of the contested decision that the participation of undertakings in illegal contacts makes it possible to presume that they will take account of the information exchanged with competitors when determining their own behaviour. According to them, that must be supported by clear evidence, which does not exist in the present case.

149    In that regard, in the first place, the applicants claim that the air cargo carriers announced publicly, in July 2004, the AMS surcharge of EUR 8 which they intended to impose, which therefore preceded the announcement that the applicants had made with regard to the application of an identical surcharge of EUR 8 in response to pricing announced by those carriers.

150    That argument is irrelevant for the purposes of judging the probative value of the evidence. Even if the air cargo carriers subjected the transmission of data to the payment of a determined fee, or even made a public announcement in that regard, it does not affect the assessment of the behaviour of each freight forwarder with respect to the fixing of prices for its own customers. The fact that the payment of a fee established by the air cargo carriers is an input cost for freight forwarders does not invalidate the finding that an agreement between freight forwarders on how that cost is passed on downstream is illegal.

151    In the second place, the applicants consider that, in recital 169 of the contested decision, the Commission itself recognises that the AMS agreement was not binding on the members of the FFI Association.

152    That argument must also be rejected. In recital 169 of the contested decision, concerning the meeting of 19 March 2003 and an argument raised by the applicants before the Commission, the Commission stated the following:

‘The minutes of the meeting clearly refer to an agreement reached by the [FFI Association] members, it is not relevant, in how far the agreement from [that association’s] Airfreight Committee was binding for its members. Moreover, this agreement was one month later presented at the CEO meeting as an agreement reached among the members of the [FFI Association’s] Airfreight Committee and no objections were raised by the CEOs. None of the official [FFI Association] documents or documents provided by UTi indicates that UTi was not joining this agreement or distanced itself from it and that it informed other [FFI Association] members accordingly.’

153    Contrary to what the applicants seem to suggest, the Commission did not accept that the AMS agreement was not binding on the members of the FFI Association, only that it was not relevant to the determination of the extent to which it had been binding, since the minutes of the meeting of 19 March 2003 ‘clearly refer to an agreement reached by the [FFI Association] members’.

154    In any event, whether or not the agreement is binding is not decisive, because, as the Commission states in recital 169 of the contested decision and as recalled in paragraphs 127 to 129 above, in the absence of public distancing by the applicants, it can be presumed that they took account of the information obtained in the context of discussions relating to the cartel.

155    The argument must therefore be rejected.

156    In the third place, the applicants claim to have announced the AMS surcharge which they were going to impose in advance of the conference call on 19 August 2004 by issuing a ‘release’ on 13 August 2004. The inclusion of this information in the minutes of the meeting of 19 August 2004 was therefore not probative of the existence of a concerted practice, because it was public information and was therefore in no way, as the Commission asserts in the contested decision, information relating to future behaviour.

157    The argument, however, does not call in question the probative value of the evidence relating to the conference call on 19 August 2004, whose minutes refer to the communication of the surcharges applied by the freight forwarders present (see paragraph 53 above).

158    The ‘release’ to which the applicants refer in support of their argument that the surcharge applied by them had been made public on 13 August 2004 appears to be a notice which was purely internal to the undertaking, given that it is addressed to ‘All UTi Operating Group Companies’. Questioned on that point at the hearing, the applicants confirmed that the document was internal to the group, although they added that, from the date of that notice, the standard price set internally would be applied to customers, and consequently their practice would necessarily become known to other players on the market. However, that argument does not make it possible to determine from what date the surcharge was in fact applied and to what extent such information was necessarily known to the applicants’ competitors.

159    Moreover, it has already been noted in paragraph 106 above that it cannot be inferred from the content of the minutes of the meeting of 19 August 2004 that the surcharges communicated on that date by the various freight forwarders present constituted only past data which were not going to continue to be applied.

160    Furthermore, the mere fact that the applicants received information concerning competitors, information which an independent operator protects as business secrets, is sufficient to demonstrate the existence of an anticompetitive intention (see, to that effect, judgment in BPB v Commission, cited in paragraph 39 above, EU:T:2008:254, paragraph 95 and the case-law cited).

161    In addition, as has already been noted in paragraph 107 above, it is also clear from the minutes of the conference call on 19 August 2004 that that conference call enabled the freight forwarders to ensure the implementation of the agreement.

162    Last, in any event, as has just been recalled in paragraph 154 above, in the absence of public distancing by the applicants, it can be presumed that they took account of the information obtained in discussions on the cartel.

163    The argument must therefore also be rejected.

164    In the fourth place, according to the applicants, their internal email of 3 August 2004, mentioned in recital 157 of the contested decision, could serve only to demonstrate that they did not independently set the price of their AMS surcharge, for several reasons. The first reason is the fact that the amount which they announced in August 2004 was the same as that announced by the air cargo carriers in July 2004. The second reason relates to the remarks of [confidential], on the inability of freight forwarders to agree on a uniform amount for the AMS surcharge, as stated in recital 156 of the contested decision. A further reason is the fact that the internal email from the UTi group of 3 August 2004 is not corroborated by the internal email [confidential] referred to in recital 192 of the contested decision, which, in the applicants’ view, contrary to that stated by the Commission in recital 192 of the contested decision, indicated only that AMS surcharges between EUR 12 and 15, and not EUR 8, were contemplated. The last reason is the fact that the author of the UTi group internal email of 3 August 2004 did not participate in the meetings of the FFI Association, did not occupy a position of authority and had no access to information on AMS pricing policies. The applicants also add that the Commission misinterpreted the content of that internal email, in particular because of the error made by its author, in so far as he made reference to guidelines of that association, whereas there was merely an alignment with prices announced by the air cargo carriers in July 2004.

165    In that regard, it is clear that several elements of the applicants’ arguments support the Commission’s view that the UTi group internal email of 3 August 2004 attests to the fact that the applicants took into account the recommendation of the FFI Association when setting the pricing of their AMS surcharge rather than the freight forwarders’ announcements.

166    As observed in recital 153 of the contested decision, that email makes reference to the proposal to follow the recommendation of the FFI Association to charge EUR 8, since that email states: ‘we have the mechanism in place and will be implementing on the 13th of [August]’ and ‘we will likely follow the FFI guideline of [EUR] 8’. The fact that the amount mentioned is the same as that announced by the air cargo carriers in July 2004 cannot be compelling, because the email clearly refers to the FFI Association.

167    Moreover, the Commission argues rightly that the intention of the applicants, to be found in their internal email of 3 August 2004, was reiterated in an internal email dated 4 August 2004 from the same author. It is clear from the latter email that the author of that mail and of the internal email of 3 August 2004 conferred with the individual who attended FFI Association meetings on behalf of the UTi group.

168    The argument that those emails are irrelevant because their author did not himself participate in the FFI Association meetings cannot therefore succeed.

169    In addition, the email from [confidential] of 5 August 2004, whose content is set out in paragraph 52 above, does not contradict the UTi group internal email, because that Schenker email implies that although there was no agreement on the exact level of the amount of the AMS surcharge, at the very least, there was an exchange of sensitive information and an agreement in principle on the establishment of such a surcharge. It is true that it is possible to read in that email that widely differing amounts were applied by various forwarders and there was no agreement on a specific amount. However, it is not claimed in the contested decision that there was an agreement on a determined surcharge amount, but rather that there was an agreement on the principle of that surcharge and on a certain range with regard to its amount.

170    As mentioned in recital 157 of the contested decision, the existence of contact with the Exel group in the course of which reference was made to an agreement between the major global players which provided for a EUR 8 surcharge is established by the [confidential] internal email [confidential] of 5 August 2004. It is thus not compelling that an internal email which precedes that email of 5 August 2004 makes reference to the AMS surcharge being projected to have a range of EUR 12 to 15. That documentary evidence clearly shows that the Exel group and the freight forwarder that was the source of the email of 5 August 2004 as well as other freight forwarders exchanged information concerning the AMS surcharges which they intended to charge, especially since, irrespective of the fact that the Commission did not find that there was an agreement on a specific amount, the amount announced by the Exel group corresponds to that announced by the applicants, namely EUR 8.

171    The argument cannot therefore succeed.

172    Accordingly, the Court must reject the submission that the Commission failed to analyse evidence showing that the applicants freely set the AMS surcharges.

173    It follows from the foregoing that none of the submissions put forward by the applicants call into question the reliability and consistency of the evidence concerning the AMS cartel described in the contested decision and recalled in paragraphs 46 to 53 above. Moreover, it is not apparent that the Commission erroneously disregarded relevant data or ignored credible alternative explanations of the facts relied on.

 The implications that follow from the evidence

174    The applicants argue, in essence, that their presence at six meetings and conference calls described in paragraphs 46 to 53 above does not support the conclusion that they participated in an infringement of Article 101 TFEU, whether this be an anticompetitive agreement or a concerted practice.

175    In that regard, it must be recalled, first, that the Commission is entitled to classify a complex infringement as an agreement ‘and/or’ concerted practice inasmuch as the infringement includes elements which are to be classified as an ‘agreement’ and elements which are to be classified as a ‘concerted practice’ (judgments of 20 April 1999 in Limburgse Vinyl Maatschappij and Others v Commission, T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94, ECR, EU:T:1999:80, paragraph 697, and 29 June 2012 GDF Suez v Commission, T‑370/09, ECR, EU:T:2012:333, paragraph 134). In such a situation, the dual characterisation has to be understood not as requiring, simultaneously and cumulatively, proof that each of those factual elements presented the constituent elements both of an agreement and of a concerted practice, but rather as referring to a complex whole comprising a number of factual elements some of which are characterised as agreements and others as concerted practices for the purposes of Article 101(1) TFEU, which lays down no specific category for a complex infringement of this type (judgments in Limburgse Vinyl Maatschappij and Others v Commission, EU:T:1999:80, paragraph 698, and GDF Suez v Commission, EU:T:2012:333, paragraph 135).

176    Moreover, as has been recalled in paragraphs 127 to 129 above, where there have been, as in the present case, meetings of competing undertakings whose object is to restrict, prevent or distort competition and are thus aimed at artificially organising the functioning of the market, it is enough for the Commission to show that the undertaking participated in those meetings in order to prove its participation in the cartel and it is up to that undertaking to prove that it distanced itself.

177    In the light of the above case-law, contrary to what the applicants claim, their presence at meetings or conference calls with an anticompetitive object is sufficient to support the finding that they infringed Article 101 TFEU in the absence of a plausible alternative explanation.

178    It is apparent from the minutes of the FFI Association Airfreight Committee meeting of 19 March 2003, first, that the UTi group was present and, second, that an agreement of an anticompetitive nature was concluded according to which the costs related to the AMS were to be borne by freight forwarders’ customers and that they would not compete on those costs. Furthermore, the content of that agreement is corroborated by the fact that it was presented to the CEOs at the meeting of 8 April 2003 and by a statement [confidential] (paragraph 47 above).

179    Moreover, it is apparent from the minutes of the meeting and subsequent conference calls mentioned in the contested decision (recitals 148, 151, 153 and 158) that the applicants participated in those meetings and those conference calls, whose object was either to confirm the initial agreement or to exchange information related to its implementation.

180    It cannot be denied that the object of the initial agreement of 19 March 2003 and the concerted practices that followed it until 19 August 2004 was to give the freight forwarders concerned control over the conditions for passing on the anticipated rise in input costs, in particular by agreeing to charge the cost relating to the expenses generated by the AMS system to their customers and not to use the resulting surcharge as a means of competition between them. As the Commission points out in recital 467 of the contested decision, there was therefore a common understanding that the minimum surcharge was to be set at the level of the costs incurred by the freight forwarders in order to comply with the AMS procedure.

181    Such an agreement or concerted practice may result in the price for freight forwarding services being set artificially high and therefore is a form of collusion which is particularly harmful to the proper functioning of normal competition.

182    In that regard, it must be stated that the Commission considers that the cartels penalised in the contested decision, including the AMS cartel at issue in the present case, affect freight forwarding services as a package of services.

183    In particular, in recitals 3 to 6, 64 to 66, 614, 867 to 872, and 877 to 879 of the contested decision, the Commission stated that, from an economic perspective, the freight forwarders transformed the transport services and other input services into freight forwarding services, which met 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 to their customers a package of services which enabled them easily to dispatch 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, and 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 goods arrive 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 through the consolidation of the goods of their various customers. In contrast, the freight forwarders prefinanced or purchased wholesale and in advance the services of third parties which were required for the provision of freight forwarding services and were in a position, by bringing together through consolidation of 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 could have done if he had attempted to purchase air transport services or related services directly from an air carrier, a ground handling company or a warehousing company. For the freight forwarders’ customers, freight forwarding services therefore had a higher value than that of their inputs considered individually.

184    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, had not regarded third parties who were not freight forwarders and who offered individual AMS filing services as actual or potential competitors and had not attempted 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 lost customers, whether or not they maintained their client base or whether or not they gained new business opportunities at the expense of their competitors.

185    The applicants do not advance concrete arguments challenging that analysis by the Commission.

186    The freight forwarding services sector is a sector with low margins, as the Commission states in recital 869 of the contested decision, without being challenged on that point by the applicants. In that context, the concerted action on an element of the final price may have an impact on the market. In any event, in order to find that a concerted practice has an anticompetitive object, there does not need to be a direct link between that practice and consumer prices (judgment of 4 June 2009 in T-Mobile Netherlands and Others, C‑8/08, ECR, EU:C:2009:343, paragraph 39).

187    Nor have the applicants been able to adduce proof that they did not take the information exchanged into account. Their arguments relating to their decision-making autonomy in no way show a public distancing from the content of the agreement as defined in the case-law referred to in paragraphs 127 to 129 above. In addition, as was provided for in the initial agreement of 19 March 2003, they introduced an AMS surcharge which was imposed at the level which had been discussed between the competing freight forwarders.

188    Moreover, contrary to what the applicants claim, the internal email of 3 August 2004 shows that they took account of the agreement and subsequent discussions whose purpose was to establish a common approach regarding the rate to be applied.

189    It follows from the foregoing that, as regards the AMS cartel, the Commission was fully entitled to conclude, on the basis of precise and consistent evidence, that the applicants participated in an agreement or a concerted practice contrary to Article 101(1) TFEU between 19 March 2003 and 19 August 2004.

190    The Court must still however examine the applicants’ submission that the cartel at issue could have had no influence on trade between Member States, since that is also a condition for the application of Article 101(1) TFEU.

 Whether trade between Member States was affected

191    The applicants submit, in essence, that the Commission’s findings set out in Section 5.2.1.3 of the contested decision, that the AMS cartel was likely to have an appreciable effect on trade between Member States, do not comply with Article 101(1) TFEU.

192    In the first place, they claim, even if there had been an anticompetitive agreement, it could not have had any influence, direct or indirect, actual or potential, on trade between Member States. According to them, even if an agreement existed on the imposition of an AMS surcharge, which they dispute, it could not have been implemented. They note that, on the date of the supposed agreement of 19 March 2003, the AMS regulations did not yet exist and that when they came into force, the alleged initial agreement had already expired.

193    In the second place, the applicants claim that in this case there was no effect on trade between Member States since the relevant market was defined in terms of national markets, in each EU Member State, for freight forwarding services between the national market concerned and the United States, and since there was no cross-border supply or demand for freight forwarding services.

194    In the third place, they add that the AMS surcharges are minimal and cover a fraction of the average price of each shipment, namely less than 0.5% of that price, both for themselves and their competitors, and consequently they cannot have any appreciable effect on trade between Member States.

195    The Commission argues that the appreciable effect on trade between Member States by the AMS cartel was established to the requisite legal standard.

196    In that regard, first of all, it must be recalled that Article 101(1) TFEU and Article 53 of the EEA agreement relate only to agreements, capable of affecting trade between Member States. As is clear from the case-law, to be capable of affecting trade between Member States it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or of fact, that the agreement may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States (judgment of 13 July 2006 in Manfredi and Others, C‑295/04 to C‑298/04, ECR, EU:C:2006:461, paragraph 42).

197    It must also be recalled that an agreement falls outside the prohibition in Article 101 TFEU if it has only an insignificant effect on the market (see judgment of 21 January 1999 in Bagnasco and Others, C‑215/96 and C‑216/96, ECR, EU:C:1999:12, paragraph 34 and the case-law cited).

198    The cross-border nature of the freight forwarding services is not identical to the issue of whether trade between Member States was appreciably affected. If every cross-border transaction were automatically capable of appreciably affecting trade between Member States, the concept of appreciability, which is, however, a condition for the application of Article 101(1) TFEU established by case-law, would be devoid of meaning (judgment of 16 June 2011 in Ziegler v Commission, T 199/08, ECR, EU:T:2011:285, paragraphs 52 and 53).

199    As to whether trade between Member States is appreciably affected, paragraph 53 of the Guidelines on the effect on trade concept contained in Articles [101 TFEU] and [102 TFEU] (OJ 2004 C 101, p. 81; ‘the 2004 Guidelines’) whose legality or relevance are not challenged in those proceedings, reads as follows:

‘The Commission will also hold the view that where an agreement by its very nature is capable of affecting trade between Member States, for example, because it concerns imports and exports or covers several Member States, there is a rebuttable positive presumption that such effects on trade are appreciable when the turnover of the parties in the products covered by the agreement calculated as indicated … exceeds [EUR] 40 million. In the case of agreements that by their very nature are capable of affecting trade between Member States it can also often be presumed that such effects are appreciable when the market share of the parties exceeds the 5% threshold set out in the previous paragraph. However, this presumption does not apply where the agreement covers only part of a Member State (see paragraph 90 below).’

200    This provision therefore establishes a rebuttable presumption that an agreement or practice affects trade appreciably, first, when the agreement or practice is, by its very nature capable of affecting trade between Member States, such being the case, for example, when it concerns imports and exports or several Member States and, second, when the turnover of the parties in the products covered by the agreement or that practice exceeds EUR 40 million or where the market share of the parties concerned is at least 5%.

201    In that context it should also be recalled that, as has been stated in paragraphs 182 to 185 above, the Commission holds that there is a specific market for freight forwarding services as a package of services, that those services are affected by the cartels at issue in the contested decision and that the applicants do not challenge that analysis in the present action.

202    In the contested decision, the question of whether the AMS infringement had an appreciable effect on trade on this market is examined in recitals 598, 599, 603 and 616 to 621. The Commission observed, in recital 617 of the contested decision, that the territories affected by the AMS cartel were both the EEA and the United States. It also considered, in recital 619 of that decision, that the FFI Association was an association representing the interests of the major global freight forwarders and that their combined market share in the market affected was therefore far above the 5% threshold. In addition, since the United States is one of the most important export markets for the EEA, the value of freight forwarding services provided on this lane was therefore also high. Furthermore, the Commission, in the contested decision, noted other relevant factors, including the fact that the cartel covered the whole EEA (recitals 601 and 618), that that cartel applied in the Member States (recital 598) and that there was the possibility of a diversion to other modes of freight forwarding or a reduction in the total level of imports and exports on the lanes affected as a result of the agreement (recital 599).

203    None of the arguments put forward by the applicants call into question that analysis.

204    First, regarding the argument based on the relevance of the date when the AMS actually entered into force, that argument has already been considered and rejected in the context of the examination above concerning the probative value of the evidence from the period before the entry into force of the regulations in question (paragraphs 55 to 68 above). It follows that the freight forwarders had been informed, prior to the meeting of 19 March 2003, of the future implementation of those regulations and that it was on the basis of that knowledge that they coordinated their actions, whether lawful actions, namely the technical aspects of implementation of those regulations or, actions contrary to Article 101(1) TFEU, concerning the passing on of the system’s costs in the price charged to their customers.

205    Second, as to the fact that the AMS surcharges concerned national export markets and that there was no cross-border demand for freight forwarding services, the argument cannot succeed.

206    No evidence has been adduced to support the claim of national markets. However, it is noted in the contested decision (see, in particular, recitals 71, 617 and 618) that the cartel covered the entire EEA since the freight forwarders involved offered their services in several Member States, or even the whole territory of the EEA, and since their customers for the freight forwarding services concerned were also established in the EEA. Those findings are undisputed.

207    As indicated in paragraph 53 of the 2004 Guidelines, an agreement which affects several Member States is, by its nature, capable of affecting trade between Member States. In the present case, regardless of the flow of goods, the restrictions of competition between the freight forwarders could influence or change trade flows of freight forwarding services in the internal market, as the Commission rightly observed in recital 598 of the contested decision. Although only sales on a trade lane outward from the EU were affected, that did not prevent the Commission from reaching the conclusion that the coordination concerning the surcharges in question was likely to influence the behaviour of freight forwarders who offered their services in several Member States.

208    Third, as to the argument relating to the fact that the AMS surcharge was a minimal amount, that is irrelevant, since the services affected by the cartel are freight forwarding services as a package of services (paragraph 201 above).

209    As the Commission correctly observes in recital 621 of the contested decision, the value represented solely by the activity of submitting the data required by the AMS legislation is not decisive, because the AMS surcharge is an integral part of the overall price paid by customers for the provision of freight forwarding services.

210    Moreover, account must be taken of the value of the services of all the participants in the cartel. It is evident that the turnover of freight forwarding services achieved by all the participants in the cartel on the trade lane between the EU and the United States is higher than the threshold of EUR 40 million required by paragraph 53 of the 2004 Guidelines, given that, as explained in footnote No 717 of the contested decision, the turnover of only one of the participants in the agreement already exceeded that threshold.

211    It follows from the foregoing that the Commission demonstrated to the requisite legal standard that the AMS cartel had as its object or effect the prevention, restriction or distortion of competition within the meaning of Article 101 TFEU and that it was likely to affect trade between Member States appreciably.

212    The first and second pleas must therefore be rejected.

 The third plea, alleging, in essence, infringement of Article 101 TFEU and Article 53 of the EEA Agreement owing to the fact that the AMS surcharges did not have an appreciable effect on competition

213    The applicants submit that an agreement or a restrictive practice can be contrary to Article 101 TFEU only if there is an appreciable effect on competition, a condition that is not satisfied in respect of the AMS cartel.

214    First, the AMS surcharges constituted an insignificant part of the total price of shipments between the EEA and the United States. According to the applicants, the surcharges represented less than 0.5% of the average shipment cost where such surcharges were imposed and the UTi group imposed AMS surcharges in less than half of the cases. The UTi group’s total outbound revenue from the EEA in the years 2005 to 2007 was approximately EUR 35.8 million, while the AMS surcharges generated revenue of only EUR 326 783. The applicants also observe that the contested decision fails to address the arguments which the applicants put forward during the administrative procedure showing that the AMS surcharges for the freight forwarding market were negligible.

215    Second, the AMS surcharges were inevitable, given the cargo carriers’ decision to introduce them.

216    Last, the applicants claim that the condition that there is an appreciable effect on competition applies irrespective of whether the infringement is characterised as a restriction by object or a restriction by effect. The applicants refer in that regard to the judgments of 9 July 1969 in Völk (5/69, ECR, EU:C:1969:35), and 12 September 2000 in Pavlov and Others (C‑180/98 to C‑184/98, ECR, EU:C:2000:428).

217    The Commission contends, in essence, that those arguments are irrelevant and should be rejected because they apply the concept of a de minimis infringement to a hardcore price-fixing cartel and rely on what the applicants allege to be the minor effects of a restriction by object.

218    The Court considers that the arguments put forward by the applicants cannot be accepted.

219    As regards the argument that AMS surcharges were inevitable given the decision of the air cargo carriers to introduce them, that has already been considered and rejected in the context of the examination of the first and second pleas above. Even though the cartel related to the passing on of a rise in input costs, that did not affect the restrictive nature of the freight forwarders’ conduct on the downstream market.

220    As regards the argument that the low financial significance of the AMS surcharges should have led the Commission to conclude that the cartel could have no appreciable effect on competition, it is clear from paragraph 7 of the judgment in Völk, cited in paragraph 216 above (EU:C:1969:35), that an agreement of undertakings falls outside the prohibition in Article 101(1) TFEU if it has only an insignificant effect on the market.

221    The Commission Notice on agreements of minor importance which do not appreciably restrict competition under Article [101 TFEU] (de minimis) (OJ 2001 C 368, p. 13) supports that approach. However, that notice, in point 11, excluded from its scope hardcore restrictions, citing as an example agreements aimed at the fixing of prices when selling products to third parties.

222    Moreover, according to the case-law, an agreement that may affect trade between Member States and that has an anticompetitive object constitutes, by its nature and independently of any concrete effect that it may have, an appreciable restriction on competition (judgment of 13 December 2012 in Expedia, C‑226/11, ECR, EU:C:2012:795, paragraph 37).

223    Questioned on this latter judgment at the hearing, the applicants again referred to the judgment in Pavlov and Others, cited in paragraph 216 above (EU:C:2000:428).

224    The facts at issue in the present case, however, can be distinguished from those referred to in the judgment in Pavlov and Others, cited in paragraph 216 above (EU:C:2000:428). In the context of the latter case, the Court of Justice held that, with regard to the decision of the members of a profession to set up a pension fund responsible for managing a supplementary pension scheme and to request the public authorities for a decision to make membership of the fund in question compulsory for all the members of that profession, the restrictive effects of that decision were limited since it only concerned a single cost factor, namely the supplementary pension scheme, which was insignificant in comparison with other factors, such as medical fees or the cost of medical equipment. Furthermore, in paragraph 96 of that judgment, the Court of Justice pointed to the possibility of some efficiency gains.

225    However, in the present case, the AMS surcharge is a significant element of the price given the fact that the freight forwarding services sector is, as already stated in paragraph 186 above, a sector with low margins, and consequently concerted action on an element of the final price can have an impact on the market.

226    Moreover, it is clear from paragraphs 94 and 95 of the judgment in Pavlov and Others, cited in paragraph 216 above (EU:C:2000:428), that the Court of Justice considered that in that case the infringement was one by effect.

227    In the present case, the Court has reached the conclusion, following the examination of the first and second pleas, that the Commission was correct in holding that the AMS cartel had an anticompetitive object and was likely to affect trade between Member States. The judgment in Expedia, cited in paragraph 222 above (EU:C:2012:795), which post-dates the judgment in Pavlov and Others, cited in paragraph 216 above (EU:C:2000:428), is clear as regards the fact that it is established that the restriction on competition is appreciable where there is a restriction by object liable to affect trade between Member States.

228    In any event, it is apparent from the context of recital 865 et seq. of the contested decision relating to the calculation of the amount of the fine, and in particular of recital 869, in which the Commission noted the impact of the imposition of a surcharge on competition in an industry with low margins, that the Commission considered that the effect of that agreement on competition was appreciable.

229    Last, to the extent that the applicants seek to question the absence of a specific examination in the contested decision of the allegedly de minimis character of the AMS cartel with regard to the restriction of competition, it must be noted that, first, it follows from the above analysis that the Commission could confine itself to the finding that the cartel at issue constituted a restriction by object liable to affect trade between Member States and, second, as pointed out in paragraph 228 above, its analysis in that regard stems from the context of the contested decision.

230    It follows from the foregoing that the third plea must be rejected and, therefore, all the pleas concerning the evidence of the applicants’ participation in the AMS cartel must be rejected.

2.     The second group of pleas, raised in the alternative, seeking, in essence, annulment or reduction of the fine

231    As a preliminary point, it should be borne in mind that review of the lawfulness of decisions adopted by the Commission is supplemented by the unlimited jurisdiction conferred on the Courts of the European Union by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. 

232    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 penalty payment imposed. Where the considerations on which the Commission relied in order to determine the amount of the fine or penalty payment imposed are vitiated by illegality, but the final amount must be considered appropriate, the unlimited jurisdiction empowers the Court to maintain the amount of the fine.

233    It is therefore for the Court, in the exercise of its unlimited jurisdiction, to assess, on the date on which the Court 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).

234    It must, however, be pointed out that the exercise of unlimited jurisdiction does not amount to a review of the Court’s own motion, and that proceedings before the Courts of the European Union are inter partes (judgment of 8 December 2011 in Chalkor v Commission, C‑386/10 P, ECR, EU:C:2011:815, paragraph 64).

235    As stated in paragraph 21 above, the applicants rely on three pleas in support of their alternative claim seeking annulment or reduction of the fine. Since the fourth and fifth pleas both relate to how the Commission calculated the fine and overlap in part, they should be examined together.

 The fourth plea alleging, in essence, error in the application of the concept of gravity, and the fifth plea, alleging a breach of the principle of proportionality

236    In the fourth plea, the applicants argue that the Commission’s assessment of the gravity of the infringement in so far as the applicants were concerned was incorrect in three ways. First, the Commission overstated their involvement in that, of the nine pieces of evidence relied on against them, none proves conclusively that they participated in the AMS cartel. Second, the Commission, on the one hand, erroneously referred to a hardcore restriction and, on the other hand, did not take sufficient account of the fact that the other freight forwarders and the applicants themselves did not implement the AMS cartel, by carrying out only a brief examination of the actual implementation of the cartel. Third, the Commission failed to differentiate the applicants’ conduct from that of other freight forwarders, by applying to all participants in the infringement, on the one hand, the same percentage of the value of sales when calculating the basic amount of the fine and, on the other, the same percentage for the additional amount, thereby disregarding the fact that the applicants were involved in only one of the four cartels.

237    In the fifth plea, the applicants maintain that, in so far as it is insisted upon in the case-law that the market characteristics be taken into account when applying the principle of proportionality to the calculation of the fine, four elements of the calculation carried out by the Commission are disproportionate. First, the use of a figure of 16% of the value of sales to calculate the basic amount of the fine is disproportionate given the fact that they did not participate in a ‘hardcore’ cartel. Second, the Commission’s use of the aggregate turnover of the EEA freight forwarding services market when calculating the value of sales is disproportionate and does not take account of, inter alia, the fact that the AMS did not exist during virtually the entire period of the cartel or of the fact that, during the one week in which the agreement relating to the AMS was applied, the amount of the AMS surcharges charged was negligible. Third, the application of the multiplier related to duration is disproportionate in view of the fact that the AMS legislation was in force only for one week in the period of 16 months identified as the duration of the cartel. Fourth, the inclusion of an additional amount is disproportionate since the imposition of such an additional amount is intended as a deterrent in cases of hardcore cartels.

238    The Commission argues that it correctly applied the concept of gravity and was not in breach of the principle of proportionality in the calculation of the amount of the fine.

239    The two pleas at issue concern, in essence, the Commission’s analysis in recitals 857 to 958 of the contested decision. It is apparent that the Commission calculated the basic amount of the fine of EUR 3 068 000 concerning the AMS cartel by using a figure of 16% of the value of sales made by the applicants (EUR 7 956 930) for freight forwarding services by air, from the EEA to the United States, paid for by customers established in the EEA. The Commission states that the gravity factor, reflected in the proportion of the value of sales, takes into account the nature of the infringement and its geographic scope and is consistent with its past decisional practice (recital 947).

240    In addition, it is clear from recitals 953 to 957 of the contested decision that the Commission applied an additional amount of 16% for deterrence on the basis of point 25 of the 2006 Guidelines, given the fact that the four infringements, including the one at issue here, constituted price-fixing agreements.

241    Moreover, the Commission applied a multiplier for duration of 0.75 years for UTi Nederland and 0.58 years for UTI Worldwide (UK) while, for UTi Worldwide, the Commission applied a coefficient of 1.41 (recital 950 of the contested decision).

242    Last, the Commission did not find any mitigating or aggravating circumstances (recital 1020 of the contested decision).

243    The arguments advanced against that analysis by the applicants as part of the fourth and fifth pleas relate, in essence, to five issues: first, the disproportionality of the value of sales taken into account, considering the short period that the AMS legislation was applied and the low amount of the AMS surcharges; second, the incorrect or disproportionate percentage of the value of sales taken into account, given the nature of the AMS cartel, the applicants’ lack of involvement in the cartel and the lack of actual implementation of it; third, the disproportionality of the multiplier for duration; fourth, the disproportionality of the additional amount for the purpose of deterrence; and fifth, an error as to the lack of differentiation between the treatment of the applicants and that of other freight forwarders in terms of the proportion of the value of sales taken into account and the additional amount.

244    In that regard, it must be observed that, under Article 49(3) of the Charter of Fundamental Rights of the European Union, 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.

245    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).

246    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 8 December 2011 KME Germany and Others v Commission, C‑389/10 P, ECR, EU:C:2011:816, paragraphs 58 and 59).

247    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).

248    The part of the overall turnover which derives from the sale of goods which are the subject of the infringement best reflects the economic importance of that infringement.

249    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’.

250    Accordingly, 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. Further, 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.

251    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 in Dansk Rørindustri and Others v Commission, cited in paragraph 95 above, EU:C:2005:408, paragraph 211).

252    It is in the light of these principles and that case-law that the substance of the arguments raised by the applicants regarding the five issues identified in paragraph 243 above must be examined.

 The disproportionality of the identified value of sales, considering the short period that the AMS legislation was applied and the low amount of the AMS surcharges

253    The applicants submit that the calculation of the value of sales based on sales on the entire freight forwarding services market is disproportionate in so far as the applicants are concerned, given, first, the fact that during virtually the entire period under consideration with respect to the AMS cartel, the economic importance of the infringement was not substantiated since the regulatory provisions in question did not exist and, second, the fact that, even in the week in which the legislation concerned was applicable, the amount of the AMS surcharges charged by them was negligible, since, on average, that amount represented 0.5% of the invoices for their freight forwarding services and was charged to only a minority of customers in the EEA. The cumulative turnover of freight forwarding services taken into account therefore bears no comparison with the AMS surcharges in terms of economic impact.

254    In that context, it should be recalled that, according to point 13 of the 2006 Guidelines, the value of the sales to be taken into account when determining the basic amount of the fine is the value of sales of goods or services made by the undertaking to which the infringement directly or indirectly relates.

255    As already noted in paragraphs 182 to 185 above, the Commission stated in recitals 867 to 870 of the contested decision that it took account of the fact that the AMS cartel affected freight forwarding services as a package of services, including ancillary services, since the particularity of the freight forwarding sector lies in the fact that the freight forwarders offer to their customers a supply combining several services (some of which could be obtained from different service providers), a supply which enables the customer to save time and money by ensuring that he does not have to seek different services from different providers. According to the Commission (recital 867 of the contested decision), the fact that the participants in the cartel agreed on the price of one part of the freight forwarding services has a direct impact on the overall price of freight forwarding services paid by customers, given the fact that, inter alia, freight forwarding is a low margin industry (recital 869 of the contested decision).

256    Although the applicants do not challenge the Commission’s analysis of the existence of a particular demand for a package of freight forwarding services, they state that the value of sales thus obtained does not reflect the economic impact of the AMS cartel given the fact that the AMS surcharges concerned were applied only for one week, were of very low value compared to the overall sales of freight forwarding services and were charged only to a minority of customers.

257    In that regard, it should be recalled that it follows from the examination of the first and second pleas that the fact that the entry into force of the AMS legislation occurred well after the first material fact of the cartel did not preclude the Commission from concluding that there was a breach of Article 101(1) TFEU from the date of the agreement in principle, on the introduction of the AMS surcharge, concluded on 19 March 2003.

258    Furthermore, point 13 of the 2006 Guidelines does not require, at the stage of determining the amount of fines, where the Commission determines the value of sales of services made to which the infringement relates, that it take account of criteria such as the gravity of the infringement, its effect on the market or the damage caused.

259    Point 13 of the 2006 Guidelines pursues the objective of identifying, as the starting point for the calculation of the fine to be imposed on an undertaking, an amount which reflects the economic importance of the infringement and the weight of that undertaking in the infringement. Consequently, while the concept of the value of sales referred to in point 13 of the 2006 Guidelines cannot, admittedly, extend to encompassing sales made by the undertaking in question which do not fall, directly or indirectly, within the scope of the alleged cartel, it would nonetheless be contrary to the goal pursued by that provision if that concept were understood as applying only to turnover achieved by the sales in respect of which it is established that they were actually affected by that cartel (judgment of 11 July 2013 in Team Relocations and Others v Commission, C‑444/11 P, EU:C:2013:464, paragraph 76).

260    Although the AMS cartel concerned only the surcharge to offset an input cost and not the overall price of freight forwarding services, the Commission is entitled to consider that it might have had a direct influence on the overall price of freight forwarding services paid by customers, particularly in view of the fact that freight forwarding is a low margin industry. Accordingly, it is the sales made in respect of freight forwarding services as a package of services which fall, directly or indirectly, within the scope of the alleged cartel within the meaning of the case-law cited in paragraph 259 above.

261    Moreover, as already noted in paragraph 60 above, this is true even for the period of the cartel for which the AMS surcharge was not yet in force, since the freight forwarders had previously been able to take into account the coordination put in place in that they did not pass on the costs related to the AMS to customers in freight forwarding contracts entered into during that period.

262    Moreover, regarding the fact that the surcharges at issue were applied only to a minority of the applicants’ customers, 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).

263    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 259 above, EU:C:2013:464, paragraphs 73 to 78).

264    The applicants put forward no argument from which it can be inferred that the sales from freight forwarding services that the Commission took into account, namely those on the trade lane affected by the AMS cartel, did not fall within the scope of that cartel.

265    Furthermore, the Courts of the European Union have never imposed an obligation on the Commission to establish in each individual case what sales were affected by the cartel (judgment in Putters International v Commission, cited in paragraph 262 above, EU:T:2011:289, paragraph 60). On the contrary, as is clear from the case-law of the Court of Justice, limiting the value of the sales to those for which it is established that they have been actually affected by an infringement committed by a particular undertaking would have the effect of artificially minimising the economic significance of the infringement 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 application 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 259 above, EU:C:2013:464, paragraphs 76 and 77).

266    Last, even if it is true that it is inappropriate to attach too much significance to the turnover, neither Article 23(3) of Regulation No 1/2003 nor the principle of proportionality preclude the Commission from using the value of the sales of goods or services made to which the infringement relates as a starting point for calculating the fines, to the extent that it also takes into account the other relevant factors.

267    Accordingly, those principles do not preclude, as a first step, the Commission simply calculating the value of sales, taking into account the fact that circumstances such as those invoked by the applicants related to the effect of the infringement on the market may possibly be taken into consideration when assessing the gravity of the infringement, to the extent that they are relevant. On the contrary, because of its objective nature and its relationship with business activity, using the value of sales made to which the infringement relates as the starting point for the calculation of fines helps to ensure that the Commission’s position is consistent from one case to another, thereby making the Commission’s actions more predictable for the undertakings concerned.

268    Consequently, the argument that the value of sales adopted is disproportionate must be rejected.

 The incorrect and disproportionate percentage of the value of sales adopted given the nature of the cartel, the lack of the applicants’ involvement in that cartel and the lack of actual implementation of it

269    Regarding the figure of 16% of the value of the sales adopted in this case (paragraph 239 above), the applicants submit that the Commission misapplied the concept of gravity because it took no account of the lack of evidence of their involvement in the AMS cartel, of the fact that the infringement was not one which was restrictive by object or, moreover, of the fact that the cartel had not been implemented. Similarly, the percentage in question is disproportionate given the fact that the cartel in the present case was not hardcore.

270    The principles of the case-law relating to the taking into account of a number of factors in order to reflect the gravity of an infringement in the calculation of the amount of the fine, set out in paragraph 246 above, are also reflected in points 19 to 22 of the 2006 Guidelines, to which the applicants refer.

271    Point 19 of the 2006 Guidelines provides that the basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement, while point 20 of those guidelines provides that the assessment of gravity will be made on a case-by-case basis for all types of infringement, taking account of all the relevant circumstances of the case. It follows from point 22 of those guidelines that in order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of the scale, up to 30% of the value of sales (point 21 of the 2006 Guidelines), the Commission has regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented.

272    As regards the assessment of the gravity of the infringement in the contested decision, it is apparent from recitals 893 to 896 that the Commission considered that, as to their nature, the cartels between the freight forwarders had constituted agreements or concerted practices which had as their object to fix, directly or indirectly, prices or other trading conditions and more precisely, with regard to the AMS, the undertakings involved had agreed on the introduction of a surcharge and surcharge-setting principles and had exchanged sensitive information on prices. It is also apparent that, contrary to what was the case for other infringements, the Commission did not hold that the undertakings concerned had fixed the level of the surcharge. The Commission also stated, in recital 899 of the contested decision, that the combined market shares of the parties represented 45% to 55% for the lane affected by the AMS cartel. As regards the geographic scope of the infringement, the Commission stated, in recital 900 of the contested decision, that the AMS cartel covered the entire EEA. In recital 902 of the contested decision, the Commission found that the agreements in question, including that relating to the AMS, had been in general implemented at least in part and that their implementation had been subject to monitoring.

273    In recital 945 of the contested decision, the Commission stated the following: ‘Given the specific circumstances of this case, taking into account the criteria discussed in recitals 893 [to] 896 on nature and recital 900 on geographic scope above, the proportion of the value of sales to be taken into account should be 16% for each of the AMS, CAF and PSS infringements’.

274    In recital 947 of the contested decision, the Commission stated that the gravity factor, which is reflected in the proportion of the value of sales, duly took into account the nature of the infringements as well as their geographic scope, notably in relation to the AMS cartel, consistent with its past decisional practice.

275    In this respect, as regards the factors which the Commission, according to the applicants, ought to have taken into account in its analysis of the gravity of the AMS infringement in order to comply with the principles outlined above, it is clear that their arguments are largely identical to those raised in relation to the evidence of the infringement and the establishment of their involvement.

276    More specifically, as to the degree of their involvement, it follows from the examination of the first and second pleas in law above that, contrary to what the applicants claim, the Commission was entitled to hold that they had joined a cartel and not only a professional organisation as an observer, that an agreement had been entered into at the meeting of 19 March 2003 from which they had not distanced themselves, that the Commission did not distort the content of the email of 3 August 2004 and that the alleged indicia adduced in support of the proposition of their marginal involvement in the cartel are not convincing.

277    Similarly, as to the nature of the infringement, the examination of the first and second pleas in law above permitted the conclusion that there was an infringement by object which concerned directly or indirectly the fixing of the prices of freight forwarding services by means of an agreement in principle and the arrangements for an AMS surcharge to be imposed on customers, and a subsequent exchange of information, even if that surcharge directly related to only one element of the final price of the freight forwarding services (see, in particular, paragraphs 180 to 185 above).

278    It is settled case-law that horizontal price agreements are among the most harmful infringements of EU competition law and may, by reason of that fact alone, be classified as very serious (see judgment of 25 October 2005 in Groupe Danone v Commission, T‑38/02, ECR, EU:T:2005:367, paragraph 147 and the case-law cited).

279    This is confirmed in point 23 of the 2006 Guidelines, according to which horizontal price-fixing agreements are among the most harmful restrictions of competition.

280    Moreover, point 21 of the 2006 Guidelines provides that the proportion of the value of sales to be taken into account for the determination of the amount of the fine can be set at a level of up to 30% of the value of sales, while it emerges from point 23 of the 2006 Guidelines that the most harmful restrictions of competition must be heavily fined, and consequently the proportion of the value of sales taken into account will generally be set at the higher end of the scale.

281    In those circumstances and particularly in view of the nature of the infringement, the applicants cannot claim that the Commission erred in setting the percentage of the value of sales in the present case at 16%. Although the nature of the infringement would have justified, in accordance with the terms of point 23 of the 2006 Guidelines, the adoption of a percentage of sales at the higher end of the scale (which rises to 30%), the percentage which the Commission adopted lies at almost the middle of that scale (see, by analogy, judgment of 14 May 2014 in Donau Chemie v Commission, T‑406/09, ECR, EU:T:2014:254, paragraph 26).

282    With regard to taking into account the implementation of the cartel, as is apparent from recitals 945 and 947 of the contested decision, whose content is recalled in paragraphs 273 and 274 above, the analysis of the gravity of the AMS cartel is based, in essence, on its nature and its geographic scope, not its implementation, even though that fact is mentioned in recital 902 of the contested decision (paragraph 272 above).

283    That approach is justified in view of the particular circumstances of the case. It concerns a horizontal agreement relating to prices affecting the entire EEA territory. Such an approach is consistent with the principles set out in points 19 to 22 of the 2006 Guidelines, referred to in paragraph 271 above.

284    Furthermore, the Commission established in the contested decision that the AMS cartel had been implemented in part, by reason of, inter alia, the fact that the participants introduced AMS surcharges for their customers and that, at the meeting of 19 August 2004, they had discussed cases of non-compliance with the cartel where no AMS fee was charged. Those findings were not invalidated in the examination of the first and second pleas above. The applicants cannot therefore claim that the agreement was not implemented at all.

285    As regards the applicants’ argument that the reference to hardcore cartels and restrictions did not meet the obligation to take into account the implementation of the cartel when setting the fine, which, according to the applicants, is supported by the judgment of 5 October 2011 in Romana Tabacchi v Commission (T‑11/06, ECR, EU:T:2011:560), aside from the fact that that judgment concerns the application of the guidelines preceding the 2006 Guidelines, contrary to what the applicants seem to claim, it does not follow from paragraphs 99 and 100 of that judgment that a reduction in the amount of the fine is required when the members of the cartel have not implemented it.

286    Similarly, with regard to point 22 of the 2006 Guidelines, as the Commission argues, consideration of factors other than the nature of the infringement mentioned in point 22 of those guidelines could logically lead to taking into account a percentage of sales which is even higher than a percentage lying in the middle of the 30% scale, such as that used in the present case.

287    Last, the effect of an anticompetitive practice is not a conclusive criterion for assessing whether the fine is appropriate. Factors relating to intent may be of greater importance than those relating to the effects, especially in the case of infringements which are intrinsically harmful (see, to that effect, judgment in Donau Chemie v Commission, cited in paragraph 281 above, EU:T:2014:254, paragraph 81).

288    It follows from the above that the Commission did not err in applying a figure of 16% to the value of sales to reflect the gravity of the AMS cartel. Such a percentage is not disproportionate given the nature of the infringement and its geographic scope. This is all the more true if the combined market shares of the undertakings concerned and the implementation, at least in part, of the infringement are taken into account (paragraph 272 above).

 The disproportionality of the multiplier relating to duration

289    According to the applicants, the multipliers relating to duration that were applied to them are disproportionate to the particular circumstances of the present case, by reason in particular of the fact that the legislation at issue did not exist over the alleged period of the infringement, more than 16 months starting from 19 March 2003, since they were adopted only on 4 March 2004, the AMS entering into force on 13 August 2004, and only for destinations on the East Coast of the United States, and were applicable only for one week of the alleged infringement period.

290    In that regard, it must be recalled that the 2006 Guidelines provide that the amount of the fine is to be calculated by reference to the gravity and the duration of the infringement in question, thus reflecting the rule in Article 23(3) of Regulation No 1/2003.

291    As the Commission explained in recital 950 of the contested decision, the multipliers set out in paragraph 241 above of 0.75 years for UTi Nederland, 0.58 years for UTI Worldwide (UK) and 1.41 years for UTi Worldwide, reflect the actual participation of those entities in the infringement in terms of months rounded down to the month below on a pro rata basis. The Commission added, in recital 949 of the contested decision, that, while the subsidiaries had taken part in different periods of the cartel, at the UTi group level, the applicants had been involved in the collusive conduct without interruption for the entire cartel duration, namely from 19 March 2003 to 19 August 2004.

292    It is clear that the applicants’ argument, that the multipliers applied do not relate to any plausible economic impact of the infringement, is merely a reformulation of arguments already rejected in the examination of the first and second pleas in law and of the arguments relating to the calculation of the value of sales. It has already been held in paragraph 257 above that the fact that the entry into force of the AMS legislation occurred well after the first material fact of the cartel does not preclude the Commission from finding that there was a breach of Article 101(1) TFEU from the date of the agreement in principle on the introduction of the AMS surcharge, entered into on 19 March 2003.

293    In that context, contrary to what the applicants claim, the duration taken into account for calculating the amount of the fine does not have to reflect the economic impact of the infringement or the period of its actual implementation.

294    Since the Commission was under no obligation to prove the effects of the agreement in question, as it had as its object the restriction of competition, it is irrelevant for calculating the duration of the infringement whether or not that agreement was implemented. To calculate the duration of an infringement whose object is to restrict competition, it is necessary merely to determine the period during which that agreement existed, that is, the time between the date on which it was entered into and the date on which it was terminated (see, to that effect, judgment of 27 July 2005 in Brasserie Nationale and Others v Commission T‑49/02 to T‑51/02, ECR, EU:T:2005:298, paragraph 185 and the case-law cited). That principle is reflected, moreover, in point 24 of the 2006 Guidelines, which refers to the number of years of participation in the infringement without referring to the implementation or actual effects thereof.

295    The applicants’ arguments must therefore be rejected, because those arguments fail to demonstrate that the multipliers relating to the duration, in so far as they are based on the duration of the participation of different entities of the UTi group in the AMS cartel, are disproportionate.

 The disproportionality of the additional amount for the purpose of deterrence

296    The applicants call into question the proportionality of the imposition of an additional amount of 16% on them given the fact that the cartel in question could not be described as ‘hardcore’.

297    In recitals 953 and 954 of the contested decision, the Commission stated in that regard that, regardless of the duration of the participation of the undertakings in the infringement, it added to the basic amount an additional amount of 16% of the value of sales in order to deter undertakings from entering into horizontal price-fixing and market-sharing agreements, given the particular circumstances of the case and the characteristics concerning the gravity of the cartel.

298    The Commission’s approach is based on point 25 of the 2006 Guidelines, which provides that an additional amount ranging from 15% to 25% of the value of sales is to be included in the basic amount of the fine in order to deter undertakings from even entering into horizontal price-fixing, market-sharing and output-limitation agreements.

299    It is clear that the applicants’ argument does not call into question that approach.

300    It has already been stated several times above that the Commission could find, without committing any error, that the AMS cartel was similar to a horizontal price-fixing agreement and constituted a restriction by object.

301    Consequently, in accordance with point 25 of the 2006 Guidelines, a multiplier of the value of sales for the purposes of deterrence is automatically applied. Furthermore, given the fact that the Commission applied an additional amount which is at the lower end of the scale mentioned in point 25 thereof, such an amount is not disproportionate.

302    Last, the applicants cannot validly claim that the reasoning provided in recitals 953 and 954 of the contested decision is not sufficient, since the Commission applies a percentage very close to the lower end of the scale laid down for the most serious restrictions (see, to that effect, judgment in Ziegler v Commission, cited in paragraph 198 above, EU:T:2011:285, paragraphs 93 and 94).

303    It follows from the foregoing that the arguments that the additional amount is disproportionate must be rejected.

 The error as to the absence of differentiation between the treatment of the applicants and that of other freight forwarders in terms of the proportion of the identified value of sales and the additional amount

304    The applicants argue that the Commission should have differentiated their conduct from that of other freight forwarders. Specifically, although the Commission acknowledged that the overall cartel consisted of four branches, it failed to analyse the legal consequences of the fact that the applicants were involved in only one of those four branches. In the light of the principle of equal treatment, the Commission ought not to have treated the applicants’ situation in the same way as that of the dominant freight forwarders as regards the level of the fine, in order to make an individual assessment of the gravity of the allegations made against them. According to the applicants, the Commission ought to have taken into account the fact that the conduct which is imputed to them concerned only the AMS, that their participation was attributable solely to the fact that they belonged to the FFI Association and that their participation in the meetings of that organisation did not include participation in any plan designed to restrict competition. In spite of those circumstances, the Commission applied to all the participants in the infringement the same figure of 16% when calculating the basic amount of the fine and also the additional amount.

305    In that regard, it should be recalled that the Commission did not find that there was one single and continuous infringement in the contested decision. Although it acknowledges that the four cartels are linked in many ways (the same market, the same nature and, in part, the same participants) (recitals 554 and 555 of the contested decision), the Commission holds that there were four separate cartels, each one of which was a single and continuous infringement (recitals 551 to 553 of the contested decision).

306    The distinction between the cartels is justified in the contested decision by several facts supporting the conclusion that there was no overall plan: the fact that each cartel emerged in response to particular local circumstances and involved local personnel, the fact that contacts in relation to each of the infringements took place in different locations around the world, covered different periods and involved different representatives of the undertakings, the fact that at each meeting only one infringement was discussed, and the fact that, with respect to each surcharge, the undertakings involved differed in part and the number of cartel members also differed, since only three undertakings participated in the four infringements.

307    The applicants do not call into question the existence of those factors relied on by the Commission to distinguish between the four cartels. Moreover, with respect to the fact that the four infringements concerned the same market, even if each of them did concern the freight forwarding services market, that does not constitute a good and sufficient reason to conclude that there was a single and continuous infringement given the factors mentioned in paragraph 306 above and the fact that each of the four surcharges in question in the contested decision concerned a different trade lane.

308    Moreover, as to the applicants’ argument alleging the existence of a cartel between dominant freight forwarders, in which they did not participate and which covered various instances of conduct in one and the same market, this argument has already been rejected as part of the examination of the first and second pleas carried out above, since the possible existence of contacts other than those taken into account in the contested decision does not call into question the legality of that decision.

309    For the remainder, it is clear from the analysis in paragraphs 253 to 288 above that, given the characteristics of the AMS cartel, the Commission was entitled to apply 16% of the value of sales and to use the same percentage for the additional amount applied for the purpose of deterrence.

310    The fact that certain other undertakings participating in the AMS cartel, to which the same figure of 16% was also applied, were also involved in some or all of the other cartels identified in the contested decision does not call into question the validity of that percentage for the AMS cartel, in respect of which the undertakings in the same situation were treated in the same way. Consequently, it cannot be concluded that there was thereby any breach of the principle of equal treatment.

311    Last, the case-law confirms that, under the 2006 Guidelines, the Commission is not obliged to take into account the relative gravity of the participation in the infringement and the particular circumstances of a case during the first stage of the method for setting the fines, but may take into account such elements when adjusting the basic amount according to the mitigating and aggravating circumstances specific to an undertaking (see, to that effect, judgments of 16 June 2011 in Team Relocations and Others v Commission, T‑204/08 and T‑212/08, ECR, EU:T:2011:286, paragraph 92, and 25 October 2011 Aragonesas Industrias y Energía v Commission, T‑348/08, ECR, EU:T:2011:621, paragraph 273).

312    However, in the present case, it is not apparent from the contested decision that the applicants invoked mitigating circumstances in the administrative procedure.

313    In any event, to the extent that, in their arguments, the applicants nevertheless claim before the Court that the Commission should have recognised that a mitigating circumstance applied to them given their allegedly limited participation in the AMS cartel, the Commission rightly states that they did not withdraw from the cartel after the agreement in principle of 19 March 2003 and that the applicants’ conduct was not such that their role can be classified as passive. No mitigating circumstance is therefore to be accepted in that connection.

314    It follows from the foregoing that the fourth and fifth pleas in law must be rejected in so far as they seek annulment of the fine of EUR 3 068 000 imposed on the applicants under Article 2(2) of the contested decision.

315    Those pleas must also be rejected in so far as it is claimed that the Court should exercise its unlimited jurisdiction, since the examination of those pleas has not revealed any errors or inappropriate factors in the calculation of the amount of the fine, because the arguments put forward do not call into question the fact that the approach adopted by the Commission took adequate account of the economic importance of the applicants’ participation in the AMS cartel, which affected freight forwarding services as a package of services. In that context, it should also be noted that, even if it cannot be ruled out that the presence of low margins can be an indication that a company’s ability to pay is low notwithstanding the size of its turnover, no arguments were raised in the present case to permit a finding that the fine imposed was excessive considering the applicants’ ability to pay.

 The sixth plea, alleging an error in that the Commission imposed on UTi Worldwide, in its capacity as parent company, a higher fine than that imposed on its two subsidiaries

316    The applicants claim that as a result of Article 2 of the operative part of the contested decision, the fine imposed jointly and severally on UTI Worldwide (UK) and UTi Nederland, as well as on their parent company UTi Worldwide, in respect of the alleged conduct of the first two undertakings amounts to EUR 2 965 000, while the fine for which the parent company, UTi Worldwide, is individually liable amounts to EUR 3 068 000. It follows that, if UTi Nederland and UTI Worldwide (UK) paid the fines for which they are jointly and severally liable (a total of EUR 2 965 000), the fine would, from their point of view, be paid in full, whereas the parent company, UTi Worldwide, would still be liable to pay EUR 103 000. According to the applicants, a parent company can be held jointly and severally liable only for the total amount of the fines imposed on those of its subsidiaries which participated directly in the infringement, and consequently the amount of the fine should be reduced at least by the difference between the fine imposed on UTi Worldwide and the fines imposed on its two subsidiaries.

317    The comparable cases cited by the Commission in its written pleadings, in which the fine imposed on a parent company differs from that imposed on its subsidiary, are irrelevant.

318    The Commission disputes that argument and contends that the difference between the fines imposed on the applicants is due to the fact that the infringement periods attributed to the subsidiaries were rounded down, while the period applied to the parent company did not require any rounding down. The favourable treatment afforded to the subsidiaries does not discriminate against the parent company, because the duration of the parent company’s participation in the infringement puts it in a different situation that does not justify any reduction. According to the Commission, there is no requirement to reduce the fine imposed on a parent company if the fine imposed on its subsidiary which is jointly and severally liable has been reduced for reasons specific to the subsidiary, and there are many reasons why the fines imposed on different legal entities within the same undertaking might vary.

319    In that regard, it should be recalled that, as has been mentioned in paragraph 11 above, the first part of the fine for which the three companies are jointly and severally liable and which amounts to EUR 1 273 000 corresponds to the additional amount imposed for the purposes of deterrence of 16% applied to the value of sales (recitals 950 and 954 of the contested decision). UTi Worldwide is liable to pay an amount of EUR 1 795 000. That amount corresponds to, first, a fine imposed jointly and severally on it and on UTI Worldwide (UK), to the amount of EUR 738 000 (the value of sales x the gravity factor of 16% x the duration factor of 0.58 years on UTI Worldwide (UK)) and, second, a fine imposed jointly and severally on it and UTi Nederland, to the amount of EUR 954 000 (the value of sales x the gravity factor of 16% x the duration factor of 0.75 years on UTi Nederland) (recitals 945 and 950 of the contested decision). In total, UTi Worldwide is liable for an amount of EUR 3 068 000, that is, EUR 1 273 000 + EUR 1 795 000 (the value of sales x the gravity factor of 16% x the duration factor of 1.41 years on UTi Worldwide) (recitals 945 and 950 of the contested decision). This amount corresponds to the basic amount as stated in recital 958 of the contested decision.

320    The applicants are therefore correct when they claim that UTI Worldwide (UK) and UTi Nederland will discharge their liability to the Commission by the payment of an amount of EUR 2 965 000 (EUR 1 273 000 + EUR 738 000 + EUR 954 000), whereas the obligation of UTi Worldwide towards the Commission amounts to EUR 3 068 000 and is thus EUR 103 000 more than the sum of the amounts for which its subsidiaries are liable. The Commission moreover does not dispute those calculations.

321    As the Commission observes, those differences result from the fact that participation in the infringement of the two subsidiaries, on the one hand, and the parent company, on the other, differed in duration, as stated in recital 950 of the contested decision.

322    Furthermore, clarification regarding the liability of the different entities was provided by the Commission in recitals 772 to 777 of the contested decision.

323    More specifically, UTI Worldwide (UK) participated in the cartel from 19 March to 21 October 2003, through its employee Mr H., and UTi Nederland participated from 21 October 2003 to 19 August 2004, through its employee Mr J. The Commission therefore found UTI Worldwide (UK) and UTi Nederland to be liable for their direct participation in the AMS cartel.

324    The parent company, UTi Worldwide, participated in the cartel from 19 March 2003 to 19 August 2004, that is to say for the combined period of the participation of its subsidiaries. According to the Commission, a presumption exists that UTi Worldwide exercised decisive influence on UTI Worldwide (UK) and UTi Nederland, and therefore UTI Worldwide (UK) and UTi Worldwide formed part of the same undertaking that committed the AMS infringement between 19 March and 21 October 2003, while the same was true of UTi Worldwide and UTi Nederland between 21 October 2003 and 19 August 2004. The applicants do not dispute the Commission’s analysis regarding UTi Worldwide’s exercise of decisive influence over its subsidiaries.

325    As regards the multipliers applied to the subsidiaries, the Commission explained in recital 950 of the contested decision that, in accordance with its practice, it took into account the actual duration of participation on a monthly basis rounded down to the month below and on a pro rata basis to take into account the duration of the participation of each entity, thereby departing from the method described in point 24 of the 2006 Guidelines, which provides that periods of less than six months will be counted as half a year while periods of more than six months but shorter than one year will be counted as a full year. The method used in the present case rounded down the duration to the nearest month of participation of each participant by disregarding the number of days.

326    Furthermore, the Commission has set out again the following calculations. For the parent company, UTi Worldwide, a multiplier of 1.41 was chosen, corresponding to a full year plus 0.41 for the additional five months, whereas for UTI Worldwide (UK), which participated in the cartel for a period of seven months and two days, that period was rounded down to seven months resulting in a coefficient of 0.58, and for UTi Nederland, since it was found to have participated in the cartel for a period of nine months and 28 days, that period was rounded downward to nine months, resulting in a multiplier of 0.75.

327    Consequently, the rounding down of the duration of the subsidiaries’ participation resulted in a combined reduction of about one month in their favour which was not accorded to the parent company.

328    In that context, it must be recalled that, in the present case, the conduct of a subsidiary may be imputed to the parent company in particular where, although having a separate legal personality, that subsidiary does not decide independently on its conduct on the market, because it is under the decisive influence of the parent company in that respect, having regard in particular to the economic, organisational and legal links between those two legal entities. That is not challenged in this action.

329    However, although, in a relationship entailing vertical capital links of that kind, the parent company in question is deemed to have itself infringed EU competition rules, its liability for the infringement is wholly derived from that of its subsidiary (judgment of 10 April 2014 in Commission v Siemens Österreich and Others, C‑231/11 P to C‑233/11 P, ECR, EU:C:2014:256, paragraphs 46 and 47 and the case-law cited).

330    Furthermore, the Court of Justice has held that, in a situation where the liability of a parent company is purely derivative of that of its subsidiary and in which no other factor individually distinguishes the conduct for which the parent company is held liable, the liability of that parent company cannot exceed that of its subsidiary (see, to that effect, judgment in Commission v Tomkins, C‑286/11 P, EU:C:2013:29, paragraphs 37, 39, 43 and 49).

331    Therefore, by analogy, in cases where the liability of a company, as a parent company, is entirely derived from that of several subsidiaries, the total sum of the amounts in respect of which that parent company can be liable should not exceed the amount for which those subsidiaries are held liable.

332    Admittedly, the Commission is correct to point out that circumstances specific to the situation of the parent company or the subsidiary could lead to different amounts, such as where the aggravating circumstance of repeated infringement is taken into account in respect of a parent company and not its subsidiary.

333    However, such particular circumstances relating to the situation of one or other company forming part of the undertaking penalised do not exist in the present case, since the only factor at issue here is that of the duration of participation in the infringement, that duration being, as regards the holding company, derived from that of its subsidiaries.

334    In those circumstances, in light of the principle stated in paragraph 330 above, if the Commission chooses for all the undertakings to which the contested decision is addressed a method for calculating the amount of the fine which is favourable to the subsidiaries of a parent company, such as that applied in the present case, whereby the infringement periods attributed to the subsidiaries were subject to rounding down whereas the period attributed to the parent company did not require any rounding down, the parent company whose liability is entirely derived from that of its subsidiaries must benefit from the same reduction in liability as that enjoyed by its subsidiaries (see, by analogy, judgment of 10 April 2014 in Areva and Others v Commission, C‑247/11 P and C‑253/11 P, ECR, EU:C:2014:257, paragraphs 136 to 138).

335    Therefore, in the present case, the Commission ought to have recognised the consequences of the fine reduction favourable to UTI Worldwide (UK) and UTi Nederland resulting from the calculation method chosen by it and recognised those consequences with respect to UTi Worldwide, since the amount of the fine for which the latter is liable to the Commission should, in principle, not exceed that for which its subsidiaries are liable.

336    It follows that the sixth plea in law must be upheld and that the contested decision must be annulled in so far as it held UTi Worldwide liable for an overall amount of EUR 3 068 000, which exceeds the amount of the fines imposed on the subsidiaries concerned.

337    In the light of all the foregoing, the Court reduces the fine imposed on UTi Worldwide by EUR 103 000 and sets the overall amount at EUR 2 965 000, which corresponds to the sum of the amounts for which the subsidiaries UTI Worldwide (UK) and UTi Nederland are held liable (paragraphs 319 and 320 above). To that end, the amount of the fine of EUR 1 795 000 attributable to UTi Worldwide set out in the first line of Article 2(2)(j) of the contested decision (paragraph 11 above) is reduced to EUR 1 692 000.

338    The action is dismissed as to the remainder, without it being necessary to rule on the admissibility of the applicants’ third head of claim, which is not supported by any specific plea or submission.

 Costs

339    Under Article 134(3) of the Rules of Procedure of the General Court, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.

340    In this case, the Court considers it to be fair in the circumstances of the case to order that the applicants bear nine tenths of the costs of the Commission and of their own costs and that the Commission bear one tenth of its own costs and of the applicants’ costs.

On those grounds

THE GENERAL COURT (Ninth Chamber),

hereby:

1.      Annuls 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 the amount of the fine imposed on UTi Worldwide, Inc. exceeds that of the fines imposed on UTi Nederland BV and UTI Worldwide (UK) Ltd;

2.      Sets the overall amount of the fine imposed on UTi Worldwide in Article 2(2) of Decision C(2012) 1959 final at EUR 2 965 000, the amount of the fine which is attributable to that undertaking pursuant to the first line of Article 2(2)(j) of that decision being set at EUR 1 692 000;

3.      Dismisses the action as to the remainder;

4.      Orders UTi Worldwide, UTi Nederland and UTI Worldwide (UK) to bear nine tenths of the costs of the European Commission and of their own costs;

5.      Orders the European Commission to bear one tenth of its own costs and of the costs of UTi Worldwide, UTi Nederland and UTI Worldwide (UK).

Berardis Czúcz Popescu

Delivered in open court in Luxembourg on 29 February 2016.

[Signatures]

Table of contents

Background to the dispute and the contested decision

Procedure and forms of order sought

Law

1.  The first group of pleas, which are the primary pleas, concerning the proof of the applicants’ participation in the AMS cartel

The first plea, alleging, in essence, an error in the assessment of the facts and evidence and the second plea, alleging, in essence, insufficiency of proof of the applicants’ participation in an agreement or concerted practice that distorted competition

Survey of the case-law concerning the existence and proof of an infringement of Article 101(1) TFEU and the Court’s duty of review

The material facts and the evidence set out in the contested decision

The submissions relating to the probative value of the evidence

–  The fact that the US authorities formally adopted the rules for the AMS only in the course of 2004

–  The fact that the Commission itself called into question the probative value of certain evidence

–  The alleged errors on the scope of the discussions within the FFI Association

–  The lack of evidence of an agreement on the prices or price range

–  The selective imposition of AMS surcharges by the applicants

–  The absence of distinction between membership of the FFI Association and the adoption of anticompetitive conduct

–  The fact that the applicants had freely set the AMS surcharges

The implications that follow from the evidence

Whether trade between Member States was affected

The third plea, alleging, in essence, infringement of Article 101 TFEU and Article 53 of the EEA Agreement owing to the fact that the AMS surcharges did not have an appreciable effect on competition

2.  The second group of pleas, raised in the alternative, seeking, in essence, annulment or reduction of the fine

The fourth plea alleging, in essence, error in the application of the concept of gravity, and the fifth plea, alleging a breach of the principle of proportionality

The disproportionality of the identified value of sales, considering the short period that the AMS legislation was applied and the low amount of the AMS surcharges

The incorrect and disproportionate percentage of the value of sales adopted given the nature of the cartel, the lack of the applicants’ involvement in that cartel and the lack of actual implementation of it

The disproportionality of the multiplier relating to duration

The disproportionality of the additional amount for the purpose of deterrence

The error as to the absence of differentiation between the treatment of the applicants and that of other freight forwarders in terms of the proportion of the identified value of sales and the additional amount

The sixth plea, alleging an error in that the Commission imposed on UTi Worldwide, in its capacity as parent company, a higher fine than that imposed on its two subsidiaries

Costs

* Language of the case: English.

1 Confidential information redacted.