Action brought on 25 January 2011 - Air France - KLM v Commission

(Case T-62/11)

Language of the case: French

Parties

Applicant: Air France - KLM (Paris, France) (represented by: A Wachsmann and S. Thibault-Liger, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul, on the basis of Article 263 TFEU, the entirety of European Commission Decision No C(2010) 7694 final of 9 November 2010 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39258 - Airfreight) in so far as it concerns Air France-KLM, as well the grounds underlying the operative part of the Decision;

at the very least, annul Article 5(b) and (d) of Decision No C(2010) 7694 final of 9 November 2010 which imposes two fines on Air France-KLM, and the grounds underlying those provisions or reduce, on the basis of Article 261 TFEU, those fines to an appropriate amount;

in any event, order the European Commission to pay all the costs.

Pleas in law and main arguments

The applicant puts forward twelve pleas in support of its action.

First plea, alleging incorrect attribution to the applicant of liability for the practices of Société Air France and KLM in breach of the obligation to state reasons, the rules governing the attribution to parent companies of the practices of their subsidiaries and of those governing the situation in which companies succeed one another within groups and the principles of personal liability and that penalties should fit the individual offender.

Second plea, alleging infringement of the right to an independent and impartial tribunal resulting from the adoption of the contested decision by an authority which holds simultaneously powers of investigation and sanction, in breach of Article 47(2) of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Third plea, alleging infringement of the Commission's Leniency Notice adopted in 2002 ¹ and of the principles of equal treatment and legitimate expectations resulting from the application of that notice in favour of Lufthansa/Swiss which does not fulfil the conditions of the Leniency Notice.

Fourth plea, alleging infringement of the obligation to state reasons resulting from a contradiction between the operative part and the grounds of the contested decision as regards the definition of the infringement imputed to the applicant.

Fifth plea, alleging failure to state the grounds and infringement of the principles of equal treatment and non-discrimination resulting from the abandoning of legal action against eleven airlines.

Sixth plea, alleging infringement of the principles of non-retroactivity of more severe penalties and of legitimate expectations resulting from the application of the Commission's Guidelines of 2006 on setting fines ² in respect of the calculation of the fines imposed on the applicant notwithstanding the fact that those guidelines had been adopted after the beginning of the investigation; that retroactive application of the 2006 Guidelines led to a significant increase in the fines which could not have been reasonably foreseen at the time of the facts.

Seventh plea, alleging infringement of the applicant's right to be heard and of the principle of equality of arms with respect to the calculation of the fines imputed to it, since there was no exchange of arguments on the essential elements of the calculation of the fines.

Eighth plea, alleging errors affecting the calculation of the fines imputed to the applicant, since those fines were calculated on the basis of incorrect sales values (i) which ought to have included only the surcharges referred to and not the tariffs and (ii) which could not include the amounts corresponding to 50% of the European Economic Area inbound revenue of Société Air France and KLM.

Ninth plea, alleging incorrect assessment of the gravity of the practices of Société Air France and KLM resulting from manifest errors of assessment and breach of the principle of equal treatment, first, because the Commission refused to take account of the lesser gravity of the surcharge infringements, the modest combined market share of the parties, the low profit margins achieved by Société Air France and KLM and the deterioration in their financial situation owing to the economic crisis in the air freight sector and, second, because the Commission included within the scope of the infringement contacts relating to the practices implemented outside of the European Economic Area.

Tenth plea, alleging breach of the principle of the proportionality of penalties and a manifest error of assessment resulting from the application of an additional amount of 16% in the fines imputed to the applicant, and of failure to state reasons in relation to the 16% rate applied in that respect.

Eleventh plea, alleging miscalculation of the duration of the infringement found against Société Air France, which led to an unjustified increase in the fine imputed to the applicant in respect of that infringement.

Twelfth plea, alleging that the reduction of 15% in the fines imputed to the applicant in respect of the regulatory regime governing air freight transport between Member States and third States is manifestly insufficient.

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¹ - Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).

² - Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2).