Judgment of the General Court (Fourth Chamber, Extended Composition) of 30 March 2022 – Cathay Pacific Airways v Commission
(Case T‑343/17) (1)
(Competition – Agreements, decisions and concerted practices – Market for airfreight – Decision finding an infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport – Coordination of elements of the price of airfreight services (fuel surcharge, security surcharge, payment of commission on surcharges) – Exchange of information – Territorial jurisdiction of the Commission – Rights of the defence – Limitation period – State constraint – Single and continuous infringement – Amount of the fine – Value of sales – Gravity of the infringement – Mitigating circumstances – Encouragement of anticompetitive behaviour by public authorities – Substantially reduced participation – Proportionality – Unlimited jurisdiction)
1. Competition – Transport – Competition rules – Air transport – Regulation No 411/2004 – Scope – EU-third country routes and non-EU EEA-third country routes – Inbound airfreight services – Included
(Arts 101 and 102 TFEU; EEA Agreement, Arts 53 and 54 and Annex XIII and Protocol 21, as amended by EEA Joint Committee Decision No 40/2005; Council Regulations No 1/2003, Art. 32(c), and No 411/2004, Arts 1 and 3)
(see paragraphs 79-94)
2. Competition – EU rules – Territorial scope – Competence of the Commission – Conformity with public international law – Implementation or qualified effects of abusive practices in the EEA – Alternative methods – Criterion of the immediate, substantial and foreseeable effect – Scope in the case of conduct having the object of restricting competition
(Art. 101 TFEU; EEA Agreement, Art. 53)
(see paragraphs 96-98, 112, 114-123, 134-136, 151-153, 162-170, 178)
3. Action for annulment – Pleas in law – Lack of competence of the institution which adopted the contested measure – Examination by the EU judicature of its own motion – Condition – Compliance with the principle that the parties should be heard
(Art. 263 TFEU)
(see paragraphs 192, 193)
4. Competition – Administrative procedure – Time-limit with regard to proceedings – Suspension – Suspensive effect attaching to pending judicial proceedings – Scope – Erga Omnes effect – None – Consequence – Determination by reference to the subject matter of the dispute
(Council Regulation No 1/2003, Arts 23 and 25(6))
(see paragraphs 228, 229, 235)
5. Competition – Administrative procedure – Powers of the Commission – Power to adopt a decision finding an infringement after expiry of the limitation period for the imposition of penalties as defined in Regulation No 1/2003 – Condition – Existence of a legitimate interest in making such a finding
(Art. 101 TFEU; Council Regulation No 1/2003, Arts 7 and 25)
(see paragraphs 230, 246)
6. Action for annulment – Subject matter – Decision finding an infringement of the competition rules by several addressees – Evidence concerning addressees other than the applicant, not challenged or challenged outside the time limit – Not included – Consequence – Account taken only of the aspects of the operative part of the decision concerning the applicant and the grounds constituting the necessary basis for that operative part
(Arts 101, 263 and 288, fourth para., TFEU; Council Regulation No 1/2003, Arts 7 and 25)
(see paragraphs 237-242)
7. Agreements, decisions and concerted practices – Prohibition – Infringements – Agreements and concerted practices constituting a single infringement – Concept – Unlawful practices and conduct forming part of an overall plan with a single objective – Assessment – Criteria – Identical object and undertakings – Requirement for a link of complementarity between the various forms of conduct at issue – None
(Art. 101 TFEU; EEA Agreement, Art. 53; EC-Switzerland Air Transport Agreement, Art. 8)
(see paragraphs 270-273, 283-287)
8. Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission – Extent of the burden of proof – Single and continuous infringement – Knowledge or foreseeability of the overall plan of the agreement, decision or concerted practice and of its key elements – Body of evidence
(Art. 101 TFEU; EEA Agreement, Art. 53; EC-Switzerland Air Transport Agreement, Art. 8; Council Regulation No 1/2003, Art. 23(2) and (3))
(see paragraphs 348-350, 369-373)
9. Competition – EU rules – Substantive scope – Conduct imposed by State measures – Not precluded – Conditions – Existence of State coercion capable of excluding all autonomous conduct of undertakings – Burden of proof incumbent on the undertaking relying thereon – Scope
(Arts 101 and 102 TFEU)
(see paragraphs 391-395, 410-415)
10. Competition – EU rules – Substantive scope – Conduct imposed by State measures – Not precluded – Scope – State coercion by a third country – Irrelevant – Conformity with public international law
(Arts 101 and 102 TFEU)
(see paragraphs 458-460, 464-467)
11. Competition – Fines – Amount – Determination – Determination of the basic amount – Determination of the value of sales – Sales carried out in direct or indirect relation to the infringement – Cartel in the airfreight services sector – Cartel covering several elements of the price of freight services – Taking into account of the full amount of sales related to freight services – Whether permissible – Breach of principle of proportionality – None
(Art. 101 TFEU; EEA Agreement, Art. 53; EC-Switzerland Air Transport Agreement, Art. 8; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, points 6 and 13)
(see paragraphs 518-526, 528-542)
12. Competition – Fines – Amount – Determination – Determination of the basic amount – Determination of the value of sales – Account taken only of the value of sales carried out in direct or indirect relation to the infringement in the geographical sector concerned – Sales carried out within the territory of the European Economic Area – Cartel in the airfreight services sector – Taking into account of the value of sales of inbound freight services – Whether permissible
(Art. 101 TFEU; EEA Agreement, Art. 53; EC-Switzerland Air Transport Agreement, Art. 8; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 13)
(see paragraphs 549-569)
13. Competition – Fines – Amount – Determination – Determination of the basic amount – Gravity of the infringement – Criteria for assessment – Nature of the infringement – Horizontal cartel concerning prices – Inherent seriousness of such an offence justifying the application of a high gravity factor
(Art. 101 TFEU; EEA Agreement, Art. 53; EC-Switzerland Air Transport Agreement, Art. 8; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, points 19 to 23)
(see paragraphs 576-581)
14. Competition – Fines – Amount – Determination – Judicial review – Unlimited jurisdiction of the EU judicature – Scope – Limit – Compliance with the principle of non-discrimination – Account taken of the Guidelines on the method of setting fines
(Art. 261 TFEU; Council Regulation No 1/2003, Art. 31; Commission Notice 2006/C 210/02)
(see paragraphs 640-646)
Operative part
The Court:
1. | | Annuls Article 1(1)(g) and (4)(g) of Commission Decision C(2017) 1742 final of 17 March 2017 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case AT.39258 – Airfreight); |
2. | | Sets the amount of the fine imposed on Cathay Pacific Airways Ltd in Article 3(g) of that decision at EUR 47 040 000; |
3. | | Dismisses the action as to the remainder; |
4. | | Orders Cathay Pacific Airways to bear one third of its own costs; |
5. | | Orders the European Commission to bear its own costs and to pay two thirds of the costs incurred by Cathay Pacific Airways. |