Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

29 February 2016 (*)

(Competition — Agreements, decisions and concerted practices — International air freight forwarding services — Decision finding an infringement of Article 101 TFEU — Price fixing — Surcharges and charging mechanisms affecting the final price — Definition of the market — Effect on trade between Member States — Cooperation — Partial immunity from a fine)

In Case T‑251/12,

EGL, Inc., established in Houston, Texas (United States),

Ceva Freight (UK) Ltd, established in Ashby de la Zouch (United Kingdom),

Ceva Freight Shanghai Ltd, established in Shanghai (China),

represented initially by M. Brealey QC, S. Love, Barrister, M. Pullen, D. Gillespie and R. Fawcett-Feuillette, Solicitors, and subsequently by M. Brealey, S. Love, M. Pullen, R. Fawcett-Feuillette and M. Boles, Solicitor, and lastly by M. Brealey and M. Pullen,

applicants,

v

European Commission, represented by V. Bottka and P. Van Nuffel, acting as Agents, and by S. Kingston, Barrister,

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 or, in the alternative, for variation of the fines imposed on them in that decision,

THE GENERAL COURT (Ninth Chamber),

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

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 17 September 2014,

gives the following

Judgment

 Background and contested decision

1        By Decision C(2012) 1959 final of 28 March 2012 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/39462 — Freight forwarding) (‘the contested decision’), the European Commission found that companies active in the sector of international air freight forwarding services, including the applicants, EGL, Inc., Ceva Freight (UK) Ltd and Ceva Freight Shanghai Ltd had, in periods between 2002 and 2007, participated in various agreements and concerted practices in the sector of international air freight forwarding services, giving rise to four separate infringements of Article 101(1) TFEU and Article 53(1) of the Agreement on the European Economic Area (EEA).

2        The first applicant, EGL, Inc., is a United States freight forwarding company which has been operating under the name EGL Eagle Global Logistics since 1984. EGL, and its subsidiaries EGL Eagle Global Logistics (UK) Ltd (now the second applicant, Ceva Freight (UK) Ltd) and EGL Eagle Global Logistics Shanghai Ltd (now the third applicant, Ceva Freight Shanghai Ltd), were acquired by Ceva Group plc in 2007. That entity merged with another independent freight forwarding company, TNT Logistics, forming the company now known under the name of Ceva. Ceva operates worldwide, providing supply chain management services, including freight forwarding, contract logistics, transportation management and distributions management. Ceva is in turn owned by affiliates of Apollo Management LP, private equity investors.

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

4        The cartels at issue concern the market in international air freight forwarding services. According to the Commission’s description of that sector in recitals 3 to 71 of the contested decision, freight forwarding services may be defined as the organisation of transportation of items, which may also include activities such as customs clearance, warehousing or ground services, on behalf of customers according to their needs. The freight forwarding business has been segmented into domestic and international freight forwarding and into freight forwarding by air, land and sea (recital 3 of the contested decision).

5        The Commission’s findings on the NES and CAF cartels can be summarised as follows:

–        the NES cartel, which is described in recitals 92 to 114 of the contested decision is a pre-clearance system for exports from the United Kingdom to countries outside the EEA which was introduced by the United Kingdom authorities in 2002; at a meeting, a group of freight forwarders agreed to introduce a surcharge for NES declarations, agreed on the levels of the surcharge and the timing of its application; following that meeting, the participants exchanged several emails in order to monitor the implementation of the agreement on the market; the anticompetitive contacts lasted from 1 October 2002 until 10 March 2003;

–        the CAF cartel, which is described in recitals 213 to 263 of the contested decision, was aimed at finding an agreement on a common tariff strategy in order to deal with a risk of a fall in profits owing to the appreciation of the Chinese currency, the renminbi, against the United States dollar, following the decision of the People’s Bank of China in 2005 that it would no longer peg the renminbi to the United States dollar; a number of international freight forwarders decided to convert all contracts with their customers into renminbi and, if that was not possible, to introduce a surcharge (CAF) and to set its level; the discussions took place in China between 27 July 2005 and 13 March 2006.

6        It is stated in recital 72 of the contested decision that the Commission began its investigation following the application for immunity submitted by Deutsche Post AG and other companies in 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 2006 Leniency Notice’). The DP group supplemented its application for immunity by oral statements and documentary evidence.

7        By letter of 24 September 2007, the Commission granted conditional immunity to the DP group with respect to an alleged cartel among the private providers of international air freight forwarding services, aimed at fixing or passing on various fees and surcharges (recital 72 of the contested decision).

8        The Commission carried out inspections between 10 and 12 October 2007 at the premises of the applicants in the United Kingdom (recital 74 of the contested decision).

9        On [confidential] (1) the applicants submitted an application for immunity or, failing that, an application for a reduction of the fine pursuant to the 2006 Leniency Notice (recital 79 of the contested decision).

10      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).

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

12      In the contested decision, having regard to the evidence in its possession, the Commission held that the applicants had taken part in the NES and CAF infringements.

13      In Article 1(1)(b) of the contested decision, the Commission found that, in relation to the NES cartel, Ceva Freight (UK) and EGL had infringed Article 101(1) TFEU and Article 53 of the EEA Agreement by participating from 1 October 2002 until 10 March 2003 in a single and continuous infringement in the air freight forwarding services sector which covered the territory of the United Kingdom, and which consisted in fixing prices or other trading conditions. Article 2(1)(b) of the contested decision provides that, for that infringement, a fine of EUR 2 094 000 was imposed jointly and severally on Ceva Freight (UK) and EGL.

14      In Article 1(3)(d) of the contested decision, the Commission found that, in relation to the CAF cartel, Ceva Freight Shanghai and EGL had infringed Article 101(1) TFEU and Article 53 of the EEA Agreement by participating, from 27 July 2005 until 13 March 2006, in a single and continuous infringement in the air freight forwarding services sector, which covered the whole European Economic Area, and which consisted in fixing prices or other trading conditions. Article 2(3)(d) of the contested decision provides that, for that infringement, a fine amounting to EUR 935 000 was imposed jointly and severally on Ceva Freight Shanghai and EGL.

15      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’) and that the Commission applied the 2006 Leniency Notice.

 Procedure and forms of order sought

16      By application lodged at the Court Registry on 6 June 2012, the applicants brought this action.

17      On the proposal of 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 under Article 64 of the Rules of Procedure of 2 May 1991, invited the Commission to produce certain documents. The Commission complied in part with that request within the period prescribed, while stating that it could not produce either a copy or a transcript of some confidential statements lodged under its leniency programme, and further, it could not produce a copy of the letter of 24 September 2007.

18      By order of 24 June 2014, adopted under the first paragraph of Article 24 of the Statute of the Court of Justice of the European Union and also under Article 65(b) and Article 66(1) of the Rules of Procedure of 2 May 1991, the Court (Ninth Chamber) ordered the Commission to produce the transcripts or the copies of the statements referred to in paragraph 17 above and a copy of the letter of 24 September 2007. Those documents were available for consultation by the lawyers acting for the applicants at the Court Registry before the hearing.

19      By a further measure of organisation of procedure, the Court asked a question of the Commission relating to the documents submitted, to which the Commission responded within the period allowed. The applicants were invited to submit their observations on that response, which they did within the period allowed.

20      The parties presented oral argument and replied to oral questions put by the Court at the hearing on 17 September 2014.

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

–        annul Article 1 of the contested decision in so far as it concerns them;

–        annul Article 2 of the contested decision in so far as it imposes on them fines for the NES and the CAF infringements or, in the alternative, reduce the amount of those fines;

–        order the Commission to pay the costs.

22      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicants to pay the costs.

 Law

23      This action is based on four pleas in law, namely, in essence: (i) failure to define the relevant market; (ii) errors of law or assessment relating to the failure properly to establish that the NES cartel had an appreciable effect on trade between Member States; (iii) an error of law relating to the failure to apply the air transport exemption to the NES cartel; and (iv) an error in the application of the 2006 Leniency Notice as regards the CAF cartel.

24      The Court considers it useful to examine the first and second pleas in law together.

 The first plea in law, failure to define the relevant market, and the second plea in law, errors of law or assessment relating to the failure properly to establish that the NES cartel had an appreciable effect on trade between Member States

25      In the first plea in law, the applicants claim that, in the contested decision, the Commission either does not define, or does not adequately define, the relevant market affected by the NES and CAF cartels, but does no more than assert in some isolated paragraphs that the services affected by the cartels were freight forwarding services. Yet that activity involves a host of separate services. According to the applicants, the exception to the obligation to define the market, covering situations where it is possible to determine, without such a definition, the distortion of competition or the effect on trade, as required for the application of Article 101 TFEU, must be construed narrowly. Given that the services offered are individual and international, how the requirements for the application of Article 101 TFEU could be satisfied in this case was not at all obvious.

26      The applicants consider, further, that, by failing to examine whether the NES and CAF surcharges were offered on separate markets, the Commission infringed the Commission Notice on the definition of relevant market for the purposes of Community competition law (OJ 1997 C 372, p. 5; ‘the market definition notice’), which requires it to be determined whether the individual services concerned are interchangeable or substitutable, and departed from its earlier practice in that regard. The result is a breach of the principle of legal certainty.

27      The applicants also refer to the fact that the section of the contested decision on the calculation of the amount of fines (i) is not the appropriate place for a definition of the market concerned and (ii) contains errors of assessment.

28      In the second plea in law, the applicants argue, in essence, that not only did the Commission fail correctly to define the customs clearance services relating to the NES as being part of a separate market, an argument also made as part of the first plea, the Commission committed two further errors.

29      First, the contested decision does not analyse how the NES surcharge, amounting to pounds sterling (GBP) 25 at most, could have had an appreciable effect on competition on the separate market of customs clearance services relating to the NES. The applicants’ turnover achieved with those services was less than EUR 200 000, a sum far below the threshold of EUR 40 million which is one of the cumulative conditions laid down by the Guidelines on the effect on trade concept contained in Articles [101 TFEU] and [102 TFEU] (OJ 2004 C 101, p. 81; ‘the 2004 Effects Notice’).

30      Second, according to the applicants, the only trade flow affected by the NES arrangement was that between the United Kingdom and non-EEA destinations, and consequently there was no trade between Member States capable of being affected, even if it was accepted that the shipping of goods was the relevant activity. Moreover, the service affected by the NES arrangement was sought solely by customers who wanted to export goods from the United Kingdom to a non-EEA destination. According to the applicants, it can also not be said that the NES arrangement was implemented in Member States other than the United Kingdom, the relevant criterion being in any event not implementation but the effect on trade concept. Last, the Commission produced no evidence in support of the assertion that the NES charge of GBP 25 altered trade flows in shipping services in the internal market and could lead to a diversion to other modes of freight forwarding.

31      The Commission disputes those arguments. It states, in relation to the first plea in law, in essence, that the contested decision contains a sufficiently detailed description of the sector at issue, satisfying the requirements of the case-law. As regards the second plea in law, the Commission considers that the contested decision demonstrates to the requisite legal standard that the NES cartel was capable of appreciably affecting trade between the Member States.

32      It is plain that the submissions put forward in relation to those two pleas in law are concerned, first, with the question of whether the definition of the relevant market provided in the contested decision is sufficient and, second, with possible errors affecting that definition and, moreover, the consequences of the chosen definition of the market, in particular for the analysis of the criterion of trade being affected between Member States, as it applies to the NES cartel.

33      In that regard, with respect to the obligation to define the relevant market, it is clear from the case-law that, in the context of the application of Article 101(1) TFEU, the sole purpose of that obligation is to determine whether the agreement in question is capable of affecting trade between Member States and has the object or effect of preventing, restricting or distorting competition within the European Union (see, to that effect, judgment of 11 July 2013 in Ziegler v Commission, C‑439/11 P, ECR, EU:C:2013:513, paragraph 71 and the case-law cited).

34      It is also apparent from the case-law that the obligation to define the market in a decision adopted under Article 101 TFEU is incumbent on the Commission where it is impossible, without such a definition, to determine whether the agreement or concerted practice at issue is liable to affect trade between Member States and has as its object or effect the prevention, restriction or distortion of competition (see judgment of 16 June 2011 in Ziegler v Commission in T‑199/08, ECR, EU:T:2011:285, paragraph 45 and the case-law cited).

35      In the light of that case-law, the two pleas in law concerned require the Court to examine first how the Commission defined the relevant market in the contested decision. Next, the Court must ascertain whether that definition made it possible to determine whether the NES cartel was capable of affecting trade between Member States, and of doing so appreciably, since the applicants put forward no specific arguments to challenge the analysis and conclusions of the Commission in that regard with respect to the CAF cartel. Last, the Court must examine whether it has been demonstrated that competition was restricted by the cartels at issue, even though the argument made by the applicants in that regard is confined to some observations which are abstract and barely supported.

 The definition of the relevant market

36      In recitals 3 to 6, 64 to 66, 614, 621, 867 to 872 and 877 to 879 of the contested decision, in particular, the Commission stated that, from an economic perspective, the freight forwarders transform the transport services and other inputs into freight forwarding services, which respond to a specific demand from their customers. That demand is not satisfied by the individual services which are components of freight forwarding services. The freight forwarders offer a package of services to their customers which enable them easily to ship goods, without having to concern themselves with the details of the organisation of transport. Those services include air transport services, but can also include warehousing services, or services relating to cargo handling, logistics or ground transport and customs and fiscal matters. If the shippers were obliged to acquire themselves the individual services required to ensure that the goods arrived at their destination, first, they would have to coordinate the various operations at their own risk, and, second, they would not be able to profit from the economies of scale which the freight forwarders are able to achieve by consolidating the goods of their various customers. In contrast, the freight forwarders prefinance or purchase the services of third parties required for the provision of freight forwarding services wholesale and in advance and are in a position, by bringing together by way of consolidation the goods of their own customers in cargoes of the optimal weight and size, to take advantage of economies of scale and to use those capacities more efficiently than one of their customers would be able to if he attempted to purchase air transport services or related services directly from an air carrier, a ground handling company or a warehousing company. For the customers of the freight forwarders, freight forwarding services therefore have a higher value than that of their inputs considered individually.

37      Further, in recitals 129, 130, 296, 572, 645, 868, 869 and 872 of the contested decision, in particular, the Commission found that, even though, in the NES and CAF cartels, the freight forwarders entered into an agreement only on the NES and CAF 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 NES cartel, that the freight forwarders which participated in that cartel were not merely suppliers of NES declaration services, did not regard third parties which were not freight forwarders and which offered individual NES declaration services as actual or potential competitors, and did not attempt to involve such suppliers in the NES 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 its customers in the form of a surcharge was likely to confer on it a competitive advantage on the market for freight forwarding services as a package of services. Since freight forwarding is a low margin market, even a small price increase or surcharge imposition or absence thereof could play a decisive role in whether or not the freight forwarders lose customers, whether or not they maintain their customer base or whether or not they gain new business opportunities at the expense of their competitors.

38      It is therefore clear that, even though, admittedly, the analysis in the contested decision is spread over various recitals in different sections of that decision, it contains many elements that describe the international air freight forwarding services sector as a package of services, capable of constituting a definition of the relevant market. The Commission concluded that the cartels at issue affected freight forwarding services as a package of services.

39      The Court must however examine the arguments advanced by the applicants in support of the use of a market definition that is more restricted than that chosen by the Commission and which concerns therefore, in this case, the services specifically linked to the NES, on the one hand, and to the CAF, on the other.

40      In the first place, as regards the NES cartel, the applicants’ argument is that, contrary to what is stated in recital 867 of the contested decision, the fee for the NES service could have had no direct and significant impact on the overall costs of freight forwarding services as a package of services since it is de minimis, and further the contested decision contains no empirical evidence on the matter.

41      That argument concerns, in essence, the question of the effect of an increase in the price for one individual service on the package of services.

42      An argument relating to that question does not however call into question the description of the sector on which the Commission relied, according to which, by reason of the advantages inherent in freight forwarding services as a package of services, there is a demand for those services that must be distinguished from the demand for the individual services, whether the transport service as such or another service, such as customs clearance. As stated in recital 867 of the contested decision, supply corresponding to such demand enables the customer to save time and money, since he does not have to seek different services from different service providers, even though some could be obtained from suppliers of individual services. Admittedly, the applicants argue that the fact that individual services can be offered by the same undertaking in one and the same transaction does not mean in itself that those services are not constituents of different markets, but that argument does not affect the finding that there is a specific demand for freight forwarding services as a package of services covering the entire transport chain and providing door-to-door logistical solutions.

43      To the extent that the applicants sought to counter that analysis by means of an argument that the demand was interchangeable in the event of price fluctuations, the argument has no basis in fact and is contradicted by the Commission’s analysis as set out in recital 869 of the contested decision. The Commission quotes there, inter alia, two emails of the DP group which are evidence of the fears as to the effect that any non-compliance with the cartel by some competitors might have on the customers and, therefore, on the income generated on the freight forwarding market as a whole.

44      Further, the evidence quoted by the Commission in recital 869 of the contested decision supports its analysis set out in that same recital, that the freight forwarding services market is characterised by low margins, so that even a small price increase or the imposition of a surcharge or absence thereof may have a direct bearing on the viability of the business and may play a decisive role in whether or not freight forwarders lose their customers, do or do not maintain their customer base, or do or do not gain new business opportunities at the expense of their competitors.

45      Contrary to what is claimed by the applicants, that analysis is based on evidence and it cannot therefore be a criticism of the Commission that it failed to refer to other ‘empirical’ evidence.

46      The argument must therefore be rejected.

47      The applicants’ second argument is that independent third parties also offer NES declaration services.

48      In that regard, it must be observed that the existence of some smaller undertakings that specialise solely in a certain type of service is recognised by the Commission, notably in recitals 5, 65 and 872 of the contested decision. However, the existence of those independent third parties does not invalidate the Commission’s analysis that there is a specific supply and demand for the freight forwarding services that are consolidated on the international air freight forwarding services market. As a package of services, those freight forwarding services respond to a specific demand from customers, from whose perspective, economically, the freight forwarding services and their individual component services are not interchangeable. Further, the fact that third parties who are not freight forwarders offer NES declaration services may demonstrate that there was a demand for such individual services, but does not thereby demonstrate that the cartels among the freight forwarders at issue in this case affected those individual services.

49      In addition, as the Commission found in recital 872 of the contested decision, and as has not been challenged by the applicants, third parties who were not freight forwarders were not considered to be actual or potential competitors by the parties to whom the contested decision was addressed in their discussions concerning the NES surcharge.

50      The argument must therefore be rejected.

51      The third argument, that the freight forwarders chose to itemise separately the NES surcharge on the airway bill, must also be rejected.

52      In that regard, it must be observed that the particular way in which services or rate increases which were directly affected by the cartels were invoiced does not call into question the description of the sector on which the Commission relied, according to which, by reason of the advantages inherent in freight forwarding services as a package of services, there is a demand for those services that must be distinguished from the demand for the individual services, whether the transport service as such or another service, such as customs clearance. As the Commission states in recital 868 of the contested decision, the breakdown of the final price into several parts is only one of a number of ways in which the price can be presented to the customer, and the freight forwarders might just as well have decided to include all the surcharges applied in the overall price of the freight forwarding services. The Commission did not therefore err in finding that the way in which the price of the freight forwarding services was presented to customers was a purely formal issue devoid of any economic or legal significance in this case.

53      As regards the applicants’ fourth argument that, in essence, a relevant market must be defined according to supply and demand side substitutability, which as a matter of logic cannot exist with respect to services as different as air transport and the NES service, that also ignores the fact that the Commission identified in the contested decision a specific demand for freight forwarding services as a package of services. As stated in particular in recital 867 of the contested decision, customers do not approach freight forwarders with the intention of obtaining separate services, but a supply to meet the demand in full, and that analysis is not called into question by the arguments put forward by the applicants, as already stated in paragraph 42 above.

54      As regards the applicants’ fifth argument, that the Commission reversed the burden of proof by stating, in recital 872 of the contested decision, that none of the evidence of discussions in the ‘Gardening Club’, the forum created for discussion of the NES arrangement, concerned a distinct market for NES services and that, in particular, there was no evidence in the file to demonstrate that those discussions were linked to anything other than the NES, must again be rejected.

55      Suffice it to state in that regard that the evidence described in recital 869 of the contested decision, already referred to in paragraphs 43 and 44 above, allows the conclusion that the participants in the cartel at issue themselves considered that the NES surcharge was likely to have a decisive effect on their business success with respect to the market for freight forwarding services as a package of services.

56      In the second place, as regards the CAF cartel, the arguments relied on by the applicants concern recital 862 of the contested decision, where the Commission determined, with respect to the turnover to be taken in account for the setting of the fine, that the services concerned were those relating to air freight forwarding from China (excluding Hong Kong) to the EEA paid for by customers located in the EEA (collect business) in United States dollars.

57      The argument that the CAF was a separate service and that a customer could choose not to purchase it by opting for billing in renminbi or by entering into its own foreign currency swap arrangements with a third-party provider of such services does not affect, any more than did the argument concerning the NES, the validity of the Commission’s approach whereby, having regard to the evidence in its possession, first, the infringement was to be considered as affecting the international air freight forwarding services sector as a whole and, second, the key characteristic of the activity of the freight forwarders was the fact that they offered the entire package of services as a potential one-stop-shop. As the Commission argues, the CAF surcharge resulted in a direct increase in the basic freight rate on the affected lane and the participating freight forwarders used it to reduce the risk from currency fluctuations. That is particularly illustrated by the content of an email from one of the addressees of the contested decision to its competitors, referred to in recital 869 of the contested decision, encouraging them to implement immediately in the market the agreed arrangements in order to avoid a fall in overall profits.

58      As regards the applicants’ argument that only sales that they made with ‘Field sales customers’ and ‘Routine order business customers’ were affected, and not their sales to ‘Global accounts’, that argument involves, first, the claim that the Commission should have determined whether the relevant market was represented by a distinct group of customers.

59      In that regard, it must be observed that the applicants conflate the issue of the object of the infringement and the issue of its effects. It is not apparent from the file that the object of the CAF cartel was to affect only a certain type of customer. Moreover, the Commission refers before the Court to some evidence, which is part of its file and the relevance of which the applicants have not challenged, that demonstrates that the CAF arrangement was intended to cover all types of customers, irrespective of size and the type of contract concerned. In particular emails from [confidential] confirm that the cartel concerned both large and small customers alike as well as international customers. Even though the applicants had not, in some cases, billed the CAF surcharge to some of their customers (only 20% were affected), it is apparent from those documents that other participants in the cartel sought to apply the surcharge to all their customers. Contrary to what is claimed by the applicants, the Commission was therefore not obliged to take into account a relevant market for the CAF cartel limited to a defined group of customers.

60      Further, in so far as the applicants attempt thereby to challenge the method followed by the Commission to calculate the value of sales as the basis for the determination of the fine, which involves taking into account the total turnover achieved by the freight forwarders with respect to international air freight forwarding services as a package of services on the trade lanes concerned, it must be observed that the argument is unsubstantiated, no reference being made to the conditions for the application of point 13 of the 2006 Guidelines, to which the Commission referred in this context.

61      In any event, the argument cannot be accepted. Suffice it to state that the objective of point 13 of the 2006 Guidelines, which refers to the value of sales to which the infringement directly or indirectly relates, is to identify as the starting point for the calculation of the fine to be imposed on an undertaking an amount that 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 those guidelines admittedly cannot extend to encompassing sales made by the undertaking in question which do not fall within the scope of the alleged cartel, it would however be contrary to the objective 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).

62      It follows from the foregoing that the applicants have failed to call into question the merits of the Commission’s analysis that the services affected by the NES and CAF infringements were international air freight forwarding services as a package of services encompassing all the services required to ensure the transportation of goods and included therefore not only transport services, but could also include other services, such as the organisation of transport, customs clearance, storage, and ground services.

 Whether trade between the Member States was appreciably affected by the NES cartel

63      As already stated in paragraph 35 above, the applicants do not advance any specific arguments to challenge the Commission’s analysis of the issue whether trade between the Member States was appreciably affected by the CAF cartel other than those concerning the definition of the relevant market examined above. It is apparent from the arguments set out in paragraphs 28 to 30 above that the applicants consider nonetheless that the Commission failed to prove that the NES cartel had such an effect on trade and that the Commission’s analysis in that regard contains errors of assessment.

64      In that context, it must be observed that Article 101(1) TFEU and Article 53 of the EEA Agreement concern only agreements which are capable of affecting trade between Member States. As is stated in the case-law, if an agreement is 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 it 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).

65      It must also be recalled that an agreement will fall 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).

66      Further, the cross-border nature of 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 in Ziegler v Commission, cited in paragraph 34 above, EU:T:2011:285, paragraphs 52 and 53).

67      In Section 5.2.1.3 of the contested decision, in recitals 590 to 599 and 602 to 621, the Commission stated that the NES cartel was capable of affecting trade between Member States, directly, with respect to the supply of freight forwarding services and indirectly, as regards the freight forwarded.

68      In that regard, it must be observed that the concept of trade for the purposes of Article 101 TFEU also encompasses services. That is stated in paragraph 19 of the 2004 Effects Notice where it is explained that that concept is not limited to traditional exchanges of goods and services across borders, but covers all cross-border economic activity, including establishment, in accordance with the fundamental objective of the Treaty to promote free movement of goods, services, persons and capital.

69      The Court must therefore examine the arguments put forward by the applicants seeking to challenge the Commission’s findings based on the effects of the NES cartel on trade with respect to freight forwarding services, and then examine the arguments seeking to challenge the Commission’s findings based on the effects of that cartel on the flow of goods.

–       Whether trade with respect to freight forwarding services was affected

70      In recitals 598, 607, 608, 610, 613 and 614 of the contested decision, the Commission stated that, notwithstanding the fact that the NES cartel related only to the legislation of one Member State, it was capable of affecting trade between Member States, in particular, with respect to freight forwarding services. First, the freight forwarding services affected by the NES cartel were sought not only by customers situated in the United Kingdom, but also by customers located outside the United Kingdom, in other EEA countries, or by local offices of the latter. Second, the freight forwarding services sector is characterised by substantial trade between Member States, both between the members of the European Union and those of the European Free Trade Association (EFTA). Freight forwarders compete with one another in all or almost all the States belonging to the EEA and their customers are established in the EEA. It was evident that the conduct of global undertakings on the United Kingdom market could have had repercussions on the competitive structure within the internal market, as the altered margins in the United Kingdom could have affected their business conduct in other Member States.

71      Moreover, the Commission stated that the effects of the NES cartel on freight forwarding services had been appreciable, since the conditions for the presumption provided for in paragraph 53 of the 2004 Effects Notice were met. First, the NES cartel was by its very nature a cartel capable of affecting trade between Member States for the purposes of paragraph 53. Second, the turnover achieved by the parties in the services affected by the NES cartel exceeded EUR 40 million and their market share exceeded the 5% threshold.

72      The arguments relied on by the applicants to counter that analysis relate, in essence to (i) the Commission’s findings based on the effects of the NES cartel on the freight forwarders’ customers and (ii) those concerning the question of whether trade was appreciably affected.

73      First, with respect to the effects of the NES cartel on the freight forwarders’ customers, it is apparent from the arguments set out in paragraphs 29 and 30 above that the applicants consider that the services affected by the NES cartel were solely those sought by customers who wanted to export goods from the United Kingdom to a non-EEA destination, that it cannot be held that the NES arrangement was implemented in Member States other than the United Kingdom and that the NES surcharge was of negligible commercial significance.

74      In that regard, it must be observed that Article 101(1) TFEU concerns agreements which are capable of affecting trade between Member States. Accordingly, the Commission is not obliged to demonstrate the actual effects of an agreement. It is sufficient that the Commission establish that those agreements are capable of having such an effect. The Commission may therefore confine itself to demonstrating that there is a sufficient degree of probability that the agreement may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States (judgment of 17 July 1997 in Ferriere Nord v Commission, C‑219/95 P, ECR, EU:C:1997:375, paragraph 20).

75      The Commission did not err in taking the view that, in the circumstances of this case, it was sufficiently probable that the NES cartel might have had an influence on the conduct of freight forwarders in Member States other than the United Kingdom.

76      In that context, first, it must be observed that, contrary to what the applicants appear to suggest, the NES cartel affected freight forwarding services (paragraphs 36 to 62 above).

77      It must also be observed that, according to the findings made by the Commission in the contested decision, which have not been challenged by the applicants, the freight forwarders which participated in the NES cartel offered their freight forwarding services also in Member States other than the United Kingdom and competed with one another in those Member States with respect to those freight forwarding services.

78      In the circumstances of this case, it cannot be ruled out that, in the absence of the NES cartel, the competition between the freight forwarders in relation to the costs arising from the NES might have had an impact on the margins of freight forwarders in the United Kingdom and might have led to gains and losses of market share in that country with respect to freight forwarding services. Further, it appears sufficiently probable that the NES cartel was capable of having repercussions on the conduct of the freight forwarders in other Member States, where they were also competing with one another, and of altering the structure of competition within the European Union in that respect.

79      In that context, it is not determinative that the NES surcharge had little commercial significance because, taking into account the fact that the freight forwarding services market is characterised by low profit margins (paragraph 44 above), the commercial importance of the NES surcharge could not be regarded as insignificant. That finding of the Commission is supported, first, by its finding in recital 907 of the contested decision that the freight forwarders’ customers resisted payment of the NES surcharge, and, second, by the evidence mentioned in recital 869 of the contested decision, which reports the fears expressed by some freight forwarders which participated in the NES cartel that competition concerning the costs arising from the NES might have altered margins and entailed a gain or loss of market share. It is clear that the applicants offer no argument capable of invalidating those findings.

80      Further, the Commission stated in recital 607 of the contested decision that the freight forwarding services affected by the NES cartel were sought not only by customers located in the United Kingdom, but also by undertakings located in other States in the EEA. In that regard, the Commission relied on a statement [confidential] that [confidential]. The freight forwarding services are therefore offered from the United Kingdom on a cross-border basis within the EEA. Those services must logically have included the NES filing service with respect to the transportation of goods from the United Kingdom. Nor, it may be added, can it be ruled out that customers located in a Member State other than United Kingdom may have sought freight forwarding services for an item which was already located in the United Kingdom.

81      Consequently, it has not been established that the Commission erred in considering that it was probable that freight forwarding services sought by customers located in a Member State other than the United Kingdom might have potentially been affected by the NES cartel.

82      Secondly, as regards whether trade was affected appreciably, the Commission’s analysis in the contested decision is based on paragraph 53 of the 2004 Effects Notice, neither the lawfulness nor relevance of that provision being challenged in this action. Paragraph 53 is worded as follows:

‘The Commission will also hold the view that where an agreement or a practice 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 … exceeds 40 million euro. 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).’

83      The applicants rely, in essence, on the insignificance of the NES charge and their turnover related to it, which is below EUR 200 000.

84      Yet the insignificance of the NES charge (GBP 25 per shipment) and of the necessarily low turnover directly linked to it is of no relevance in that context, having regard to the conclusion stated above that the Commission was correct to take into account a relevant market relating to freight forwarding services as a package of services encompassing not only the NES services, but also other services. The Commission could therefore take into consideration the turnover linked to that overall supply on the trade lane concerned and not solely the turnover relating to the NES. Moreover, that argument takes no account of the fact that the relevant question is whether the arrangement as a whole, and not the participation of the applicants alone in that arrangement, is capable of affecting trade between Member States.

85      In addition, as already stated in paragraph 44 above, the freight forwarding services market is characterised by low profit margins. It can therefore be determined with a sufficient degree of probability that the NES cartel could have a significant effect on that market. The fact that the freight forwarders’ customers resisted payment of the charge relating to the NES (paragraph 907 of the contested decision) is also conducive to a finding that the effect was not insignificant.

86      For the remainder, as the Commission explains, the Commission found in recital 899 of the contested decision that the market share of the participants in the cartel on the trade lane affected by the NES was 30% to 35% (footnote No 708 and recitals 613 and 899 of the contested decision) on the basis of information provided by the addressees of the contested decision. The participants’ market share with respect to freight forwarding services to the United Kingdom and in the EEA was also approximately 30%, allowing therefore the conclusion that the 5% threshold for the combined market share of the participants in a cartel, stated in paragraph 53 of the 2004 Effects Notice, was significantly exceeded.

87      Likewise, as regards the accumulated turnover of the participants, that necessarily exceeded the sum of EUR 40 million mentioned in paragraph 53 of the 2004 Effects Notice, since the turnover on the trade lane affected of one participant alone in the NES cartel already exceeded that threshold (recital 614 of the contested decision).

88      Consequently, the Commission did not err in holding that the NES cartel was capable of appreciably affecting trade between Member States with respect to freight forwarding services.

–       Whether the flow of goods was affected

89      In so far as the aim of the applicants’ argument, concerning the claim that the only trade flow affected was that between the United Kingdom and non-EEA destinations and the claim that, taking into consideration the insignificance of the NES surcharge, the NES cartel could not have altered trade flows or caused a diversion to other modes of transporting goods, is to establish that the findings of the Commission based on the flow of goods being affected by the NES cartel are in error, the argument is ineffective. Even if the NES cartel did not appreciably affect the flow of goods between Member States, that is not capable of invalidating the Commission’s conclusion that, by reason of its effects on the freight forwarding services market, the NES cartel was such as appreciably to affect trade between Member States.

 Whether competition was restricted

90      In the contested decision, the Commission describes in detail, for each of the cartels, the surcharge at issue and how the evidence in its possession establishes the anticompetitive object of the behaviour concerned. The Commission concludes, in recital 571 of the contested decision, that the collusive arrangements between the parties, including those with respect to the NES and the CAF, constituted agreements and/or concerted practices which had as their object to fix, directly or indirectly, selling prices or other trading conditions pursuant to Article 101(1) TFEU, because the undertakings agreed on the introduction of surcharges, their level and the timing of their introduction, and on the fixing of trading conditions (CAF), and exchanged sensitive information on prices (CAF). The Commission holds that agreements and concerted practices on prices or other trading conditions by their very nature prevent, restrict or distort competition.

91      As the Commission observes, the applicants do not dispute its conclusion that their behaviour within the framework of the NES and CAF cartels had an anticompetitive object.

92      Further, as is explained in particular in recital 867 of the contested decision, the reason why the Commission finds that the collusion had an effect on the final price paid for freight forwarding services is that the individual services affected by the fixing of surcharges are part of one overall supply to the freight forwarders’ customers. In addition, as is stated in recital 869 of the contested decision, given that the sector is one of low margins, any increase in price has a direct bearing on the viability of the freight forwarders’ business on the freight forwarding services market.

93      In any event, certain collusive behaviour, such as that leading to horizontal price fixing by cartels, may be considered to be so likely to have negative effects on, in particular, the price, quantity or quality of goods and services, that it may be considered redundant, for the purposes of the application of Article 101(1) TFEU, to prove that they have actual effects on the market (see, to that effect, judgment of 30 January 1985 in Clair, 123/83, ECR, EU:C:1985:33, paragraph 22).

94      The Court must therefore hold that the Commission was correct to find in the contested decision that the CAF and NES cartels had as their object the restriction of competition among freight forwarders on the market for freight forwarding services as a package of services encompassing all the services required for the shipment of freight.

95      Next, as regards whether there was an appreciable restriction on competition, let it suffice to recall the case-law that 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).

96      It follows from the foregoing that the Commission demonstrated in the contested decision to the requisite legal standard, first, that the NES cartel was capable of appreciably affecting trade between Member States and, second, that the NES and CAF cartels had as their object or effect the prevention, restriction or distortion of competition within the meaning of Article 101 TFEU on the international air freight forwarding market.

97      Consequently, although it might have been preferable if the contested decision had contained a more structured and less fragmented analysis of the market concerned, having regard to the case-law cited in paragraph 34 above and contrary to what is claimed by the applicants, the Commission was not required to describe the sector concerned in more detail or other than by means of the factors discussed in the contested decision and identified in the analysis in paragraphs 36 to 94 above. What emerges is a sufficiently detailed description of the sector of international air freight forwarding services, including supply, demand and geographical extent, that makes it possible to ascertain that the condition for the application of Article 101 TFEU, namely that trade between Member States on the market was affected, was satisfied with regard to the NES and CAF cartels. Likewise, it is established that those cartels restricted competition on that market.

98      Last, in the light of that conclusion, the arguments concerning an alleged infringement of the market definition notice to the extent that the Commission did not follow the method set out therein for the definition of a market or that the Commission departed from its earlier practice in that regard, and concerning a breach thereby of the principle of legal certainty (paragraph 26 above), must, in any event, be rejected as being ineffective.

99      It follows that the first and second pleas in law must be rejected.

 The third plea in law: error in law on the non-application to the NES cartel of the exemption for air transport

100    As is stated in recital 950 of the contested decision, the NES infringement found to have been committed by the applicants relates to the period from 1 October 2002 until 10 March 2003.

101    This plea in law concerns the Commission’s conclusion in recitals 644 to 648 of the contested decision that it was entitled to rely on 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) as the basis for penalising the applicants for their participation in the NES cartel for the period before 1 May 2004. According to the Commission, before that date, that cartel was not exempt from the scope of Regulation No 17 of the Council of 6 February 1962, First Regulation implementing Articles [101 TFEU] and [102 TFEU] (OJ, English Special Edition, Series I 1959-1962, p. 87) because of the transport exemption provided for by Article 1 of Regulation No 141 of the Council of 26 November 1962 exempting transport from the application of Council Regulation No 17 (OJ, English Special Edition, Series I 1959-1962, p. 291). In that context, the Commission relied on, inter alia, the finding that the participants in the NES cartel coordinated their behaviour in order to remove uncertainty in relation to various elements of price in the freight forwarding sector and it was therefore the rates for freight forwarding services which were affected by that cartel and not the rates for transport services. Even if the freight forwarders had had contractual relationships with the air carriers, those relationships would have been the basis for the provision of air transport services, but not for the provision of freight forwarding services affected by the NES cartel.

102    The applicants consider that that conclusion of the Commission is misconceived. Under Article 1 of Regulation No 141, the Commission had, according to the applicants, no power to impose penalties with respect to the NES cartel before 1 May 2004 because the air transport exemption deriving from Article 1 of Regulation No 141, as interpreted by the case-law, applied to the services affected by that cartel. The exemption at issue concerned services directly related to the provision of transport services by air.

103    The applicants also claim that the NES service ensures compliance with the United Kingdom customs regulations applicable to exports by air and is thus directly related to the provision of transport services by air. That link is confirmed, moreover, by Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) and by the fact that the guidelines of the tax and customs authority on the subject of NES provide for a system where express permission with respect to goods leaving the United Kingdom is mandatory. In the absence of an export declaration or, in the United Kingdom during the applicable period, without a declaration made via NES, the goods were not cleared for export and any aircraft carrying non-compliant goods was delayed or prevented from taking off.

104    Further, the applicants claim that the Commission accepts on several occasions in the contested decision, in particular in recitals 597, 626, 867 and 876, that the NES is not a service that is distinct from the provision of transport services by air, but is directly related to the latter.

105    The Commission disputes those arguments.

106    In that context, it must be recalled that Regulation No 1/2003, as amended following Council Regulation (EC) No 411/2004 of 26 February 2004 repealing Regulation (EEC) No 3975/87 and amending Regulations (EEC) No 3976/87 and No 1/2003 in connection with air transport between the Community and third countries (OJ 2004 L 68, p. 1), on which the Commission based the contested decision, applies to air transport.

107    However, under the legislation which was in force before Regulation No 1/2003 became applicable, that is before 1 May 2004, cartels affecting air transport between the Community and third countries were exempted from the scope of Regulation No 17. Under Article 1 of Regulation No 141, Regulation No 17 did not apply to agreements in the transport sector which had as their object or effect the fixing of transport rates and conditions, the limitation or control of the supply of transport or the sharing of transport markets. It is true that Article 1 of Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (OJ 1987 L 374, p. 1), as amended by Council Regulation (EEC) No 2410/92 of 23 July 1992 (OJ 1992 L 240, p. 18), provided for the removal of that exemption in the case of air transport between Community airports, but not in the case of air transport between the Community and third countries.

108    First, the applicants’ argument is designed to establish that the air transport exemption in Article 1 of Regulation No 141 covers not only air transport, but also all the activities that are directly related to it.

109    In that regard, in the first place, it must be recalled that, in order to be exempted from the scope of Regulation No 17 by Article 1 of Regulation No 141, the conduct of an undertaking must have as its object or effect the restriction of competition in the transport market. According to the third recital of Regulation No 141, only conduct directly relating to the provision of transport services is to be exempted by Article 1 of that regulation.

110    Further, it must be recalled that, according to the case-law, the conduct of an undertaking which does not affect air transport itself, but a market situated upstream or downstream of air transport, cannot be regarded as directly relating to the provision of transport services and is therefore not exempted by Article 1 of Regulation No 141 (see, to that effect, judgment of 17 December 2003 in British Airways v Commission, T‑219/99, ECR, EU:T:2003:343, paragraphs 171 and 172).

111    The applicants’ interpretation that the air transport exemption concerns all the services that are directly related to transport services cannot therefore be accepted since Article 1 of Regulation No 141 exempts only cartels that are directly related to transport services.

112    Second, as regards the argument that the services associated with the NES are directly related to transport services because the goods could not be shipped without an NES declaration from the United Kingdom, that again does not support the inference that the cartel at issue is exempted.

113    It is apparent from the examination in paragraphs 36 to 62 above that the Commission was correct to hold that the NES cartel affected freight forwarding services.

114    Yet it has been observed above that Article 1 of Regulation No 141 does not exempt cartels affecting services that are related, even directly, to transport services, but solely cartels that are directly related to the provision of transport services. It is not therefore sufficient to demonstrate that the NES concerns services that are directly related to transport services or that the formalities associated with the NES are a necessity if freight is to be shipped, since no argument has been offered to call into question the analysis that the penalised cartels affected the freight forwarding services market and not the transport market.

115    Accordingly, even if the NES services and transport services are directly related, that in no way alters the fact that the services affected by the NES cartel were not transport services but freight forwarding services, situated downstream of transport services and therefore not exempted by Article 1 of Regulation No 141. Even though an undertaking seeks to obtain transport services on an upstream market, its activities on a downstream market, which are not directly related to transport services, are not exempted under that article. The provisions of Regulation No 2913/92 on the Community Customs Code, to which the applicants also make reference (paragraph 103 above), are, it may be added, of no relevance on this point.

116    Third, the applicants argue that, in the contested decision, the Commission considers that transport services are a component part of freight forwarding services (recital 597 of the contested decision) or that it ‘cannot be accepted that the transport service is an entirely distinct part of the services offered by the freight forwarders’ and that ‘on the contrary, transport is an essential and characteristic part of the services offered by the freight forwarders’ (recital 626 of the contested decision). The applicants also refer to the section of the contested decision concerning the setting of fines where it is stated, in recital 867, that the customers ‘therefore do not approach the freight forwarders with the intention to obtain separate services, but it is the package that they are interested in’, the airport to airport service being included in this package. Likewise, the applicants note that, in recital 876 of the contested decision, the Commission states that the cost of the air transport service constitutes a significant part of the final price charged by the freight forwarders to their customers.

117    Accordingly, the applicants appear to suggest that the Commission contradicts itself when, on the one hand, it does not accept that the freight forwarding sector and the transport sector are related in order to establish its competence whereas, on the other hand, the Commission takes account of a link between transport services and other services included in the package of freight forwarding services offered by the freight forwarders, particularly at the stage of calculating the turnover to be taken into consideration in order to determine the value of sales, for the setting of the fine.

118    However, as stated in paragraphs 36 to 62 above, the services affected by the NES cartel were freight forwarding services as packages of various individual services required for the shipment of freight, including not only transport services, but also other services, such as, warehousing services, cargo handling, logistics or ground transport or customs and tax procedures. Accordingly, even if air transport services are an input and an essential element of freight forwarding services, it is clear that the NES cartel did not directly affect the air transport services market, on which carriers sell such services to freight forwarders, but the relationship between the freight forwarders and their customers on the freight forwarding services market. Since the NES cartel therefore did not directly relate to air transport services, the Commission could hold that the air transport exemption provided for by Regulation No 141 did not apply.

119    That conclusion does not however prevent the Commission from taking the view that the freight forwarding services encompassed transport services within the package of services offered and that transport services constituted an important part of that package of services. Nor does it prevent the Commission from acting accordingly with respect to the part of the freight forwarders’ turnover to be taken into account, as appropriate, corresponding to the cost of transport as an input cost, in the calculation of the value of sales identified for the determination of the fine, pursuant to point 13 of the 2006 Guidelines.

120    Since the fact that the transport services are an input and an essential element of freight forwarding services does not call into question the conclusion that the NES cartel affected freight forwarding services and not transport services, the applicants’ argument concerning an alleged contradiction in the contested decision on this point must be rejected.

121    Consequently, the Court must reject the third plea in law.

 The fourth plea in law: misapplication of the 2006 Leniency Notice with respect to the CAF cartel

122    This plea concerns the Commission’s decision to grant immunity from a fine with respect to the CAF cartel to the DP group and not to the applicants.

123    In recitals 1026 to 1103 of the contested decision, the Commission granted the DP group immunity from a fine with respect to the NES, AMS, CAF and PSS cartels. In that regard, the Commission stated that, at the time when it had received the DP group’s immunity application, having regard to the information which the DP group had submitted to it, it was entitled to grant the DP group, in its letter of 24 September 2007, conditional immunity with respect to an alleged cartel among the private suppliers of international freight forwarding services aimed at fixing or passing on to their customers various fees and surcharges, in particular [confidential]. At the end of the administrative procedure, the Commission held that the DP group had cooperated satisfactorily and that the alleged cartel with respect to which it had granted the DP group conditional immunity ‘fully covered all infringements dealt with in this decision’.

124    Further, the Commission assessed the applications, made by other undertakings, for immunity and reduction of fines in connection with those cartels.

125    Accordingly, it is stated in recital 1070 of the contested decision that the Commission rejected the application made by the applicants, as stated in particular in a letter [confidential], that they should be granted full immunity with respect to the CAF cartel, in accordance with point 8(b) of the 2006 Leniency Notice, because, among other reasons, the Commission had already granted conditional immunity to the DP group in the letter of 24 September 2007.

126    As is apparent from recitals 1062 to 1070 of the contested decision, the applicants ultimately received, in addition to partial immunity under the last paragraph of point 23(b) of the 2006 Leniency Notice, for the period [confidential], taking into account the compelling evidence that they had provided for that period, a 50% reduction in the amount of the fine otherwise imposed for the CAF cartel.

127    The applicants consider that the Commission’s analysis and the conclusions drawn from it are vitiated by errors.

128    In support of that position, they argue, in essence, that it is apparent in particular from recital 1063 of the contested decision that they provided in their immunity application, before any other undertaking, evidence concerning the CAF arrangement that was not in the possession of the Commission and on which that decision is to a great extent founded, and consequently the conditions laid down in point 8(b) of the 2006 Leniency Notice for their being granted immunity were satisfied. The applicants also consider that the DP group was not the first undertaking to submit evidence that made it possible to carry out an inspection targeted on the CAF or to identify an infringement of Article 101 TFEU in relation to the CAF. The Commission was not therefore entitled to rely on point 22 of the 2006 Leniency Notice to justify refusing them immunity, contrary to their legitimate expectations. The applicants add that the Commission failed to state sufficient reasons for its rejection of arguments which they put forward in that regard in a letter [confidential]. Further, conditional immunity granted to the DP group in the letter of 24 September 2007 did not extend to the CAF. 

129    The applicants request, last, that the Court exercise its unlimited jurisdiction to reduce the fine in order to remedy the procedural unfairness to which the Commission’s error has given rise. They maintain that the leniency reduction in the fine granted to them with respect to the CAF cartel should be increased to the level of 100% to reflect the central importance of the evidence that they provided.

130    The Commission disputes those arguments.

131    The applicants’ arguments relate, in essence, to, first, a failure to state sufficient reasons in the contested decision as regards the refusal to grant them full immunity for the CAF cartel and, second, errors affecting the grant of full immunity to the DP group for the CAF cartel and the refusal to grant them full immunity.

 The failure to state sufficient reasons in the contested decision with respect to the refusal to grant the applicants full immunity for the CAF cartel

132    First, it must be recalled that in the statement of reasons required by the second paragraph of Article 296 TFEU the Commission must disclose in a clear and unequivocal fashion its reasoning in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to exercise its power of review (see, to that effect, judgment of 29 September 2011 in Elf Aquitaine v Commission, C‑521/09 P, ECR, EU:C:2011:620, paragraph 147).

133    Thus, in the context of individual decisions, it is settled case-law that the purpose of the obligation to state the reasons on which an individual decision is based is, in addition to permitting review by the competent courts, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged (see judgment in Elf Aquitaine v Commission, cited in paragraph 132 above, EU:C:2011:620, paragraph 148 and the case-law cited).

134    In this case, in the administrative procedure, by letter [confidential], the applicants responded to the Commission’s preliminary notification of its analysis that the applicants could not obtain full immunity with respect to the CAF cartel, and argued, inter alia, that the immunity granted to the DP group could not cover the CAF, because they were the first undertakings to have disclosed evidence of that cartel, and consequently they ought to be granted full immunity with regard to the CAF cartel under point 8(b) of the 2006 Leniency Notice.

135    In recital 1070 of the contested decision, the Commission responds explicitly to the arguments set out in the letter [confidential], as follows:

‘Ceva’s request has to be dismissed for the following reasons. Firstly the Commission decision of 24 September 2007 on conditional immunity covers any and all cartels “among providers of international freight forwarding services aimed at fixing or passing on various fees and surcharges”, which includes the CAF infringement as well. Secondly, immunity for all four infringements described in this decision was granted [to the DP group] under [point 8(a) of the 2006 Leniency Notice], that is on the basis that [the DP group] has provided the Commission with sufficient information and evidence to enable the latter to conduct targeted inspections in the specific industry sector. Furthermore, in accordance with [point 11 of the 2006 Leniency Notice], Ceva could no longer qualify for [the immunity provided for in point 8(b) of that notice], as conditional immunity [provided for in point 8(a) of that notice] was granted to [the DP group].’

136    It is therefore plain that the Commission explained clearly and unequivocally its reasoning in such a way as to enable the applicants to understand why the Commission refused to grant them full immunity for the CAF cartel and the Court to exercise its power of review of the validity of that refusal.

137    The complaint must therefore be rejected.

 The errors in the decision to grant full immunity to the DP group for the CAF cartel and to refuse it to the applicants

138    The applicants’ argument seeks to show, in essence, that, if the Commission had applied the 2006 Leniency Notice correctly, they would have obtained immunity for the CAF cartel. In that context, they claim, first, that the Commission should not have granted immunity from fines to the DP group for the CAF cartel. The conditions laid down in point 8(a) and point 9 of the 2006 Leniency Notice were not satisfied, since the information and the evidence provided by the DP group had not enabled the Commission to conduct targeted inspections in connection with that cartel.

139    In that regard, it must initially be recalled that it follows from point 8(a) of the 2006 Leniency Notice that the Commission is to grant conditional immunity to an undertaking which discloses its participation in an alleged cartel if that undertaking is the first to submit information and evidence which will enable the Commission to carry out a targeted inspection in connection with that cartel.

140    Point 9 of the 2006 Leniency Notice is worded as follows:

‘For the Commission to be able to carry out a targeted inspection within the meaning of point (8)(a), the undertaking must provide the Commission with the information and evidence listed below, to the extent that this, in the Commission’s view, would not jeopardise the inspections:

(a)      A corporate statement … which includes, in so far as it is known to the applicant at the time of the submission:

–        A detailed description of the alleged cartel arrangement, including for instance its aims, activities and functioning; the product or service concerned, the geographic scope, the duration of and the estimated market volumes affected by the alleged cartel; the specific dates, locations, content of and participants in alleged cartel contacts, and all relevant explanations in connection with the pieces of evidence provided in support of the application;

–        The name and address of the legal entity submitting the immunity application as well as the names and addresses of all the other undertakings that participate(d) in the alleged cartel;

–        The names, positions, office locations and, where necessary, home addresses of all individuals who, to the applicant’s knowledge, are or have been involved in the alleged cartel, including those individuals which have been involved on the applicant’s behalf;

–        Information on which other competition authorities, inside or outside the EU, have been approached or are intended to be approached in relation to the alleged cartel; and

(b)      Other evidence relating to the alleged cartel in possession of the applicant or available to it at the time of the submission, including in particular any evidence contemporaneous to the infringement.’

141    Pursuant to point 18 of the 2006 Leniency Notice, once the Commission has received the information and evidence submitted by the undertaking and has verified that it meets the conditions set out in point 8(a), the Commission is to grant the undertaking conditional immunity from fines in writing.

142    It follows from point 22 of that notice that if, at the end of the administrative procedure, an undertaking meets the conditions set out in point 12 thereof, one of those conditions being that the undertaking cooperates genuinely, fully, continuously and expeditiously with the Commission, the Commission is to grant it final immunity in the decision bringing the administrative procedure to an end.

143    Having regard to the structure of those provisions, the Court must examine whether, pursuant to point 8(a) and points 9 and 18 of the 2006 Leniency Notice, the Commission was entitled to grant to the DP group conditional immunity with respect to an alleged cartel of the scale described in paragraph 123 above, and then examine whether, at the end of the administrative procedure, the Commission was entitled to grant the DP group final immunity with respect to the CAF cartel.

144    Pursuant to point 8(a) of the 2006 Leniency Notice, the DP group had to be the first undertaking to submit information and evidence enabling the Commission to carry out a targeted inspection in connection with an alleged cartel covering the CAF cartel.

145    In that regard, it is not sufficient for the Court to find that, in the letter of 24 September 2007, the Commission did grant the DP group conditional immunity with respect to such an alleged cartel and that the conditions for the withdrawal of the conditional immunity granted in that letter were not met, as contended by the Commission.

146    First, irrespective of whether that decision to grant conditional immunity contained in the letter of 24 September 2007 is binding on the Commission vis-à-vis the DP group, there is nothing to prevent the applicants arguing that the conditions for the adoption of such a decision were not met. It is therefore for the Court to examine whether, as asserted by the Commission, at the time of that letter, the information and evidence submitted by the DP group could reasonably have enabled the Commission to carry out a targeted inspection in connection with an alleged cartel covering, inter alia, the CAF cartel, in accordance with point 8(a) of the 2006 Leniency Notice. Second, contrary to what is argued by the Commission, the discretion the Commission invokes does not preclude the Court from assessing the sufficiency of the information and evidence submitted by the DP group. In that regard, it must be recalled that, as regards the choice of factors taken into account in the application of the criteria set out in the 2006 Leniency Notice and the assessment of those factors, it is for the Court to carry out its review of legality without using the Commission’s margin of discretion as a basis for dispensing with conducting an in-depth review of the law and of the facts (judgment of 24 October 2013 in Kone and Others v Commission, C‑510/11 P, EU:C:2013:696, paragraphs 24 and 54).

147    That is why the Court asked the Commission to submit copies of the immunity application of the DP group and of statements and documentary evidence that the DP group submitted to it before 24 September 2007 (see paragraphs 6, 7, 17 and 18 above).

148    In that context, it must also be recalled that, in order to be able to adopt a decision ordering inspections under Article 20(4) of Regulation No 1/2003, the Commission must identify the facts which are such as to justify inspections (see, by analogy, judgment of 26 June 1980 in National Panasonic v Commission, 136/79, ECR, EU:C:1980:169, paragraphs 26 and 27).

149    In order to justify inspections, it is not necessary that the documents submitted by the DP group to the Commission were such as to establish beyond reasonable doubt the existence of the infringement identified in the contested decision. That standard of evidence is required for decisions of the Commission in which it finds that there is an infringement and imposes fines. On the other hand, for the Commission to be able to adopt a decision ordering an inspection under Article 20(4) of Regulation No 1/2003, it is sufficient that it is in possession of information and evidence providing reasonable grounds for suspecting the existence of an infringement (see judgment of 8 March 2007 in France Télécom v Commission, T‑340/04, ECR, EU:T:2007:81, paragraph 53 and the case-law cited).

150    Particularly in the area of unlawful cartels, the various indicia must not be assessed separately but as a whole, and can be mutually corroborative (see, by analogy, judgments of 14 July 1972 in Imperial Chemical Industries v Commission, 48/69, ECR, EU:C:1972:70, paragraph 68, and 8 July 2004 JFE Engineering and Others v Commission, T‑67/00, T‑68/00, T‑71/00 and T‑78/00, ECR, EU:T:2004:221, paragraph 275).

151    As regards the information and evidence submitted by the DP group, it must first be observed that, in its statements, the DP group stated that [confidential]. The DP group also [confidential]. Further, the DP group stated that the … conduct [confidential]. In addition, the DP group added that [confidential].

152    Second, the DP group submitted information and evidence which was such as to create an initial suspicion of conduct by the freight forwarders affecting a host of competitiveness factors with respect to freight forwarding services. In particular, the DP group reported alleged anticompetitive conduct concerning … surcharges [confidential].

153    The Court considers that, taken as a whole, that information and evidence was not only capable of creating an initial suspicion of anticompetitive conduct affecting a host of competitiveness factors among freight forwarders but also enabled the Commission to suspect that, beyond the specific examples already reported by the DP group, within the scope of the alleged cartel reported by the DP group, freight forwarders had also entered into agreements concerning competitiveness factors comparable to or similar to those mentioned in paragraph 152 above.

154    In that context, the Court must take note in particular of [confidential].

155    That initial suspicion was reinforced by, inter alia, the information provided by the DP group in its statement [confidential], that [confidential].

156    It was also reinforced by information from the DP group that [confidential].

157    Accordingly, at the stage in the proceedings at which the Commission received information and evidence from the DP group, it was entitled to suspect that, within the scope indicated by the DP group, namely the markets in freight forwarding services mentioned in paragraph 123 above, freight forwarders had acted with the aim of restricting competition between them with respect to a host of competitiveness factors, including those listed in paragraph 152 above.

158    In the light of those factors and taking into account the fact that the DP group had also provided the names of the freight forwarders participating in the alleged cartel, the Commission did not err in holding that the information that the DP group submitted to it before 24 September 2007 enabled it to carry out a targeted inspection in connection with an alleged cartel among the private suppliers of international freight forwarding services aimed at fixing or passing on to their customers various fees and surcharges in the territories mentioned in paragraph 123 above.

159    Consequently, the Commission did not err in granting conditional immunity to the DP group with respect to such an alleged cartel pursuant to point 8(a) and points 9 and 18 of the 2006 Leniency Notice.

160    As regards the Commission’s decision to grant final immunity to the DP group at the end of the administrative procedure, it must be observed that, after having found, in recital 1029 of the contested decision, that the NES, AMS, CAF and PSS cartels constituted separate, single and continuous infringements, the Commission held, in recital 1031 of that decision, that the alleged cartel with respect to which it had granted the DP group conditional immunity ‘fully covered all infringements dealt with in this decision’.

161    In so doing, the Commission followed the procedure laid down in point 22 of the 2006 Leniency Notice.

162    In the light of the foregoing, it must be concluded that, in this case, the Commission did not infringe the conditions laid down in point 8(a) and points 9, 18 and 22 of the 2006 Leniency Notice.

163    The Court must however examine the other arguments put forward by the applicants concerning, in essence, the claim that the information and evidence submitted by the DP group was too limited, that the conditional immunity as described in the letter of 24 September 2007 was limited, the inferences to be drawn, in the context of point 8(b) of the 2006 Leniency Notice, from the quality of the information submitted by the applicants with respect to the CAF cartel and the fact that the refusal to grant the applicants full immunity for that cartel was unfair and in breach of their legitimate expectations.

164    First, in essence, the information and evidence submitted by the DP group did not, according to the applicants, enable the Commission to conduct a targeted inspection in connection with the CAF cartel, since that material did not specifically relate to that cartel. The applicants state in particular that the statement of the DP group [confidential], specifically relied on by the Commission, refers solely to [confidential], whereas the CAF cartel concerned the establishment of a common strategy to deal with the risk of a reduction in profits as a result of the appreciation of the renminbi against the United States dollar involving freight forwarders active in Asia between July 2005 and March 2006. That information therefore does not meet the requirements of point 8(a) of the 2006 Leniency Notice, read together with point 9 of that notice.

165    However, as the Commission correctly pointed out at the hearing, in that context, it must be recalled that, at the time when the Commission receives an application for immunity under point 8(a) of the 2006 Leniency Notice, it does not yet have any knowledge of the cartel concerned. Accordingly, as is stated in footnote No 1 to point 8(a) of the 2006 Leniency Notice, the Commission must carry out an ex ante assessment of the application for immunity, based exclusively on the type and quality of information submitted by the undertaking.

166    The 2006 Leniency Notice therefore does not preclude the Commission granting conditional immunity to an undertaking even where the information provided by that undertaking does not yet enable the Commission to form a conception of the nature and scope of the alleged cartel which is detailed and specific.

167    First, although point 9(a) of the 2006 Leniency Notice requires that the undertaking seeking immunity must submit to the Commission a ‘detailed description’ of, inter alia, the alleged cartel and its geographic scope together with ‘specific information’ on its content, that obligation applies only in so far as the undertaking has such knowledge at the time of its application. Second, as is stated in point 4 of the 2006 Leniency Notice, the collaboration of an undertaking in the detection of a cartel of which the Commission had no prior knowledge has an intrinsic value which can justify immunity from fines. The objective of point 8(a) and point 18 of the 2006 Leniency Notice is to facilitate the detection of infringements which are not known to the Commission, which would remain secret in the absence of evidence disclosed by the undertaking applying for immunity (see, to that effect, judgment in Kone and Others v Commission, cited in paragraph 146 above, EU:C:2013:696, paragraph 67).

168    As regards the CAF cartel, the applicants argue that, in so far as, in its statement [confidential], the DP group submitted material concerning a surcharge relating to currency adjustment, that was information and evidence which did not relate to the CAF cartel, but to [confidential]. In that regard, suffice it to recall, first, that point 8(a) and points 9 and 18 of the 2006 Leniency Notice do not impose the requirement that the material submitted by an undertaking should constitute information and evidence that specifically relates to the infringements identified by the Commission at the end of the administrative procedure and, second, that it is clear from the considerations set out in paragraphs 141 to 159 above that, at the stage in the procedure at which the Commission granted conditional immunity to the DP group, the information and evidence submitted by the DP group justified an initial suspicion by the Commission of alleged anticompetitive conduct that covered, inter alia, the CAF cartel.

169    Accordingly, the fact that the material that the DP group had submitted in the statement concerned did not refer specifically to the CAF cartel did not preclude the Commission granting conditional immunity to the DP group for an alleged cartel the scope of which included, inter alia, the CAF cartel.

170    The argument must therefore be rejected.

171    Second, as regards the applicants’ argument that the conditional immunity as described in the letter of 24 September 2007 does not cover the CAF, it must be recalled that, as stated in recital 1070 of the contested decision, that letter grants conditional immunity to the DP group for all the cartels among the suppliers of international freight forwarding services aimed at fixing or passing on various fees and surcharges. That letter, a copy of which was submitted to the Court at its request by the Commission, adds that in this regard, in particular the fees and surcharges involved were [confidential].

172    That description can reasonably be read as encompassing the CAF cartel, which concerns the definition of a common tariff strategy among freight forwarders, with the particular aim of fixing a surcharge, in order to provide protection against the risk of renminbi fluctuation. Even if it can be sustained that the examples mentioned in the letter of 24 September 2007 (‘in particular’) do not specifically concern the risk of currency exchange fluctuations, these are only examples. Moreover, it is stated in that letter that surcharges fixed in connection with freight forwarding business in Asia are specifically covered, which corresponds to the type of cartel to which the CAF cartel can be assigned.

173    That argument must therefore also fail.

174    Third, as regards the argument that the Commission should have granted to the applicants full immunity for the CAF cartel on the basis of point 8(b) of the 2006 Leniency Notice, it must be recalled that that provision must be read together with point 11 of that Notice, which reads as follows:

‘Immunity pursuant to point 8(b) will only be granted on the cumulative conditions that the Commission did not have, at the time of the submission, sufficient evidence to find an infringement of Article [101 TFEU] in connection with the alleged cartel and that no undertaking had been granted conditional immunity from fines under point 8(a) in connection with the alleged cartel. In order to qualify, an undertaking must be the first to provide contemporaneous incriminating evidence of the alleged cartel, as well as a corporate statement containing the kind of information specified in point 9(a), which would enable the Commission to find an infringement of Article [101 TFEU].’

175    Further, the fact that the Commission was able to hold that the DP group had satisfied the other conditions required to qualify for the immunity from fines provided for in point 12 of the 2006 Leniency Notice — genuine cooperation, ending its involvement in the cartel, not concealing evidence — has not been challenged in this action. Taking into account those considerations also, the Commission granted immunity from fines to the DP group, in accordance with point 22 of that notice (paragraphs 160 and 161 above).

176    In addition, the Court must take note of point 21 of the 2006 Leniency Notice, from which it is apparent that the Commission is not to consider other applications for immunity from fines before having made a decision on an existing application in relation to the same alleged infringement, irrespective of whether the immunity application is presented formally or by requesting a marker.

177    It follows from a combined reading of those provisions, and in particular from point 11 of the 2006 Leniency Notice, that the Commission could not grant to the applicants the benefit of immunity from fines on the basis of point 8(b) of that notice if it had already granted a valid conditional immunity to the DP group on the basis of point 8(a) of that notice.

178    It follows that this argument must be rejected, and there is no need for any further examination of whether, as the applicants claim, the information submitted by them satisfied the conditions of point 8(b) of the 2006 Leniency Notice so as to qualify for full immunity from fines with respect to the CAF cartel.

179    Fourth, the Court must also reject the arguments relied on by the applicants that the fact that the consequence was that they could not be granted full immunity for the CAF cartel was unfair and in breach of their legitimate expectations.

180    Admittedly, by the adoption of the 2006 Leniency Notice, the Commission created legitimate expectations, as indeed the Commission recognised in point 38 of that notice. In view of the legitimate expectation which undertakings intending to cooperate with the Commission are entitled to derive from that notice, the Commission is therefore obliged to adhere to it. Accordingly, were the Commission not to have complied with the rules of conduct laid down by that notice, the Commission would have been in breach of the principle of the protection of legitimate expectations (judgments of 18 June 2008 in Hoechst v Commission, T‑410/03, ECR, EU:T:2008:211, paragraph 510, and 13 July 2011 Kone and Others v Commission, T‑151/07, ECR, EU:T:2011:365, paragraph 127).

181    However, the applicants’ reasoning would amount to disregarding the legitimate expectations of the DP group, which was the first undertaking to approach the Commission with regard to the cartels at issue. The Commission is correct to state on that subject that it was bound to take into consideration its decision to grant conditional immunity contained in the letter of 24 September 2007, the legality of which was confirmed above. The Commission was therefore obliged to honour its commitment to the DP group and to grant it immunity, the commitment arising from the cooperation of that undertaking with respect to revealing those cartels.

182    Further, in that regard, it is necessary also to take account of the objectives of the 2006 Leniency Notice and the structure of the system thereby introduced. In so far as the applicants maintain in this argument that it is unforeseeable whether their cooperation will be rewarded, suffice it to state that it is apparent from the structure of the leniency programme that the added value of the contribution from an undertaking that decides to cooperate with the Commission, and therefore its reward, will always be dependent on what knowledge the Commission already has of the cartel(s) at issue. Accordingly, that lack of foreseeability is part of the leniency programme and is designed to encourage the undertakings concerned to cooperate as quickly as possible.

183    As regards the objective of the Commission’s leniency programme, the aim is not to offer to undertakings participating in secret cartels an opportunity to escape the financial consequences of their responsibility, but to facilitate the detection of such practices and then, in the administrative procedure, to reconstruct the relevant facts as far as possible. Accordingly, the benefits which may be obtained by undertakings participating in such practices cannot exceed the level that is necessary to ensure the full effectiveness of the leniency programme and of the administrative procedure carried out by the Commission.

184    Further, as the Commission has not failed to point out, the reward provided by the leniency programme is not granted for the purposes of fairness but in exchange for cooperation that facilitated its work (see, to that effect, judgment of 17 May 2011 in Arkema France v Commission, T‑343/08, ECR, EU:T:2011:218, paragraph 136 and the case-law cited), while respecting the principle of equal treatment of companies in a similar situation. In this case, the DP group and the applicants were not however in similar situations.

185    The Commission could take into account, in particular, the fact that, at the time when the DP group had submitted its immunity application, the Commission was not previously aware of anticompetitive conduct affecting freight forwarding services, whereas, at the time when it received the applications of the other undertakings, including that of the applicants, it already had such information. In that context, it must be recalled that, when the other undertakings lodged their applications, the Commission had in its possession not only information and evidence that the DP group had submitted to it, but also evidence that the Commission had seized in the course of the unannounced inspections.

186    Last, in so far as the aim of the applicants’ argument that the extent of the reduction in the fine granted to them was unfair by comparison with the central importance of the evidence submitted by them is to require account to be taken of their cooperation outside the framework of the 2006 Leniency Notice, the Commission is correct to state that it cannot be criticised for failing to take account of that cooperation outside the scope of that notice when that cooperation specifically took place in a cartel case and on the basis of that notice.

187    In that regard, the 2006 Leniency Notice sets out a framework for ensuring that undertakings which are or have been parties to secret cartels affecting the European Union are, in return for their cooperation in the Commission’s investigation, rewarded, and it is apparent from the wording and structure of that notice that the undertakings can, in principle, obtain a reduction of the fine for their cooperation only where they satisfy the strict conditions laid down in that notice (see, to that effect, judgment of 12 December 2012 in Novácke chemické závody v Commission, T‑352/09, ECR, EU:T:2012:673, paragraph 114 and the case-law cited).

188    In this case, the applicants do not any identify any specific legal basis on which any further reduction in the fine, outside the scope of the 2006 Leniency Notice, should be granted to them.

189    To the extent that their argument should be interpreted as referring to the application to them of the fourth indent of point 29 of the 2006 Guidelines, whereby the fact that the undertaking concerned effectively cooperates with the Commission outside the scope of the 2006 Leniency Notice and beyond its legal obligation to do so, may amount to a mitigating circumstance, capable of giving rise to a reduction of the fine, it must be recalled that that provision does not allow an undertaking to qualify for a double reduction of the fine, both under the 2006 Leniency Notice and under the 2006 Guidelines, for the same cooperation with the Commission (see, to that effect, judgment of 27 February 2014 in LG Display and LG Display Taiwan v Commission, T‑128/11, ECR (Extracts), EU:T:2014:88, paragraphs 205 and 206).

190    With respect to infringements which fall within the scope of the 2006 Leniency Notice, in principle, the party concerned cannot validly complain that the Commission failed to take into account the degree of its cooperation as a mitigating circumstance, outside the legal framework of that notice (see, to that effect, judgment of 15 March 2006 in BASF v Commission, T‑15/02, ECR, EU:T:2006:74, paragraph 586, and 14 July 2011 Arkema France v Commission, T‑189/06, ECR, EU:T:2011:377, paragraph 178). Since the Commission took account of the applicants’ cooperation, by reducing the fine pursuant to the 2006 Leniency Notice, it cannot validly be complained that the Commission did not apply a further reduction to the fine imposed on the applicants, outside the scope of that notice (see, to that effect, judgment in LG Display and LG Display Taiwan v Commission, cited in paragraph 189 above, EU:T:2014:88, paragraph 207).

191    It follows that the case-law which states that, in exceptional situations, the Commission is required to grant a reduction of the fine to an undertaking on the basis of the fourth indent of point 29 of the 2006 Guidelines (see, to that effect, Arkema France v Commission, cited in paragraph 184 above, EU:T:2011:218, paragraph 170) must be interpreted as meaning that a prerequisite for the existence of such situations is that the cooperation of the undertaking concerned, while going beyond its legal obligation to cooperate, nonetheless does not give rise to the right to a reduction of the fine under the 2006 Leniency Notice (judgment in LG Display and LG Display Taiwan v Commission, cited in paragraph 189 above, EU:T:2014:88, paragraph 208).

192    That being the case, the applicants would be able to receive a further reduction, by reason of a mitigating circumstance, only on the basis of cooperation other than that already taken into account under the 2006 Leniency Notice and which met the conditions necessary for application of the fourth indent of point 29 of the 2006 Guidelines.

193    In this instance, the applicants qualified for the specific benefit, on the basis of the 2006 Leniency Notice, of, first, a 50% reduction in the fine which would normally have been imposed for the CAF cartel, taking into account the significant value of their contribution to establishing the CAF infringement, the early stage at which the evidence was provided and the level of cooperation offered (recital 1065 of the contested decision), and, second, partial immunity for the period [confidential], taking into consideration the compelling evidence that they submitted for that period (recital 1068 of the contested decision).

194    Consequently, the Commission could not further reduce the fine imposed on the applicants by reason of that cooperation on their part.

195    It follows from the foregoing that the Commission did not err in granting full immunity to the DP group for the CAF cartel and in refusing, consequently, to grant such immunity to the applicants.

196    Last, the foregoing analysis has not revealed anything to justify the Court exercising its unlimited jurisdiction with a view to reducing the fine imposed on the applicants for their participation in the CAF cartel beyond the partial immunity and the 50% reduction in the amount of the fine already granted by the Commission with respect to that cartel.

197    The fourth plea in law must therefore also be rejected, and the action must be dismissed in its entirety.

 Costs

198    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs incurred by the Commission, as sought by the Commission.

On those grounds,

THE GENERAL COURT (Ninth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders EGL, Inc., Ceva Freight (UK) Ltd and Ceva Freight Shanghai Ltd to pay the costs.

Delivered in open court in Luxembourg on 29 February 2016.

[Signatures]

Table of contents

Background and contested decision

Procedure and forms of order sought

Law

The first plea in law, failure to define the relevant market, and the second plea in law, errors of law or assessment relating to the failure properly to establish that the NES cartel had an appreciable effect on trade between Member States

The definition of the relevant market

Whether trade between the Member States was appreciably affected by the NES cartel

– Whether trade with respect to freight forwarding services was affected

– Whether the flow of goods was affected

Whether competition was restricted

The third plea in law: error in law on the non-application to the NES cartel of the exemption for air transport

The fourth plea in law: misapplication of the 2006 Leniency Notice with respect to the CAF cartel

The failure to state sufficient reasons in the contested decision with respect to the refusal to grant the applicants full immunity for the CAF cartel

The errors in the decision to grant full immunity to the DP group for the CAF cartel and to refuse it to the applicants

Costs

* Language of the case: English.

1 Confidential information redacted.

© European Union
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