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 — Fines — Proportionality — Gravity of the infringement — Equal treatment — Obligation to state reasons — Settlement — 2006 Guidelines on the method of setting fines)

In Case T‑270/12,

Panalpina World Transport (Holding) Ltd, established in Basle (Switzerland),

Panalpina Management AG, established in Basle,

Panalpina China Ltd, established in Hong Kong (China),

represented by S. Mobley, A. Stratakis, T. Grimmer and B. Smith, Solicitors,

applicants,

v

European Commission, represented by V. Bottka, G. Meessen and P. Van Nuffel, acting as Agents, and by C. Thomas, Solicitor,

defendant,

APPLICATION for annulment of Commission Decision C(2012) 1959 final of 28 March 2012 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/39462 — Freight forwarding), in so far as it concerns the applicants, and for variation of the fines imposed on them in that decision,

THE GENERAL COURT (Ninth Chamber),

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

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 1 October 2014,

gives the following

Judgment

 Background to the dispute and the contested decision

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

2        The first applicant, Panalpina World Transport (Holding) Ltd (‘Panalpina Holding’), a company incorporated under Swiss law, is the parent company of a group of companies (‘the Panalpina group’) supplying freight forwarding and logistics services, which includes the second applicant, Panalpina Management AG, also a company incorporated under Swiss law, and the third applicant, Panalpina China Ltd, a company incorporated under the law of Hong Kong (China).

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

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

5        The Commission’s findings relating to the AMS, CAF and PSS cartels may be summarised as follows:

–        the AMS cartel, which is described in recitals 131 to 163 of the contested decision, concerns an AMS surcharge the introduction of which by the freight forwarders for their customers and its implementation were coordinated from the beginning of 2003, following significant amendments made to the AMS by the United States Bureau of Customs and Border Protection after the terrorist attacks of 11 September 2001; a number of international freight forwarders agreed from at least 19 March 2003 until 19 August 2004 to fix a surcharge at a level that would enable them to cover at least the costs associated with the AMS; the discussions between the undertakings participating in the cartel and the monitoring of its implementation took place, in particular, in the context of the Freight Forward International Association (named Freight Forward Europe before 1 January 2004);

–        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;

–        the PSS cartel, which is described in recitals 300 to 342 of the contested decision, concerned an agreement between a number of international freight forwarders between August 2005 and May 2007 relating to the application of a temporary rate adjustment factor; that factor was imposed as a reaction to increased demand in the air freight forwarding sector at certain times, such as the Christmas period, which led to a shortage of transporting capacity and an increase in transport rates; it was designed to protect the freight forwarders’ margins.

6        It is stated in recital 72 of the contested decision that the Commission began its investigation following the application for immunity submitted by Deutsche Post AG 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’).

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

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

9        In the contested decision, having regard to the evidence in its possession, the Commission held that the applicants had taken part in the AMS, CAF and PSS cartels.

10      In Article 1(2)(f) of the contested decision the Commission found that, in relation to the AMS cartel, Panalpina Management and Panalpina Holding had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating from 19 March 2003 until 19 August 2004 in a single and continuous infringement in the air freight forwarding services sector, which covered the whole of the EEA and which consisted in fixing prices or other trading conditions. Article 2(2)(f) of the contested decision provides that, for that infringement, a fine amounting to EUR 23 649 000 was imposed jointly and severally on Panalpina Management and Panalpina Holding.

11      In Article 1(3)(i) of the contested decision, the Commission found that, in relation to the CAF cartel, Panalpina China and Panalpina Holding had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating, from 27 July 2005 until 9 December 2005, in a single and continuous infringement in the air freight forwarding services sector, which covered the whole of the EEA and which consisted in fixing prices or other trading conditions. Article 2(3)(i) of the contested decision provides that, for that infringement, a fine amounting to EUR 3 251 000 was imposed jointly and severally on Panalpina China and Panalpina Holding.

12      In Article 1(4)(g) of the contested decision the Commission found that, in relation to the PSS cartel, Panalpina China and Panalpina Holding had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating, from 9 August 2005 until 21 May 2007, in a single and continuous infringement in the air freight forwarding services sector, which covered the whole of the EEA and which consisted in fixing prices or other trading conditions. Article 2(4)(g) of the contested decision provides that, for that infringement, a fine amounting to EUR 19 584 000 was imposed jointly and severally on Panalpina China and Panalpina Holding.

13      It is stated in recital 856 of the contested decision that the fines imposed were calculated on the basis of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’).

 Procedure before the General Court and forms of order sought

14      By application lodged at the General Court Registry on 12 June 2012, the applicants brought the present action.

15      Upon hearing the report of the Judge-Rapporteur, the Court (Ninth Chamber) decided to open the oral procedure.

16      By letter of 26 September 2014 the Commission submitted its observations on the report for the hearing.

17      The parties presented oral argument and answered the questions put to them by the Court at the hearing on 1 October 2014.

18      The applicants claim that the Court should:

–        annul the contested decision in its entirety in so far as it applies to them;

–        or, in the alternative:

–        in so far as the Court should uphold the first, second or fourth plea in law, vary Article 2(2), (3) and (4) of the contested decision, in so far as those provisions concern the applicants, and annul or, in the alternative, reduce the fine imposed on the applicants by those provisions;

–        in so far as the Court should uphold the applicants’ third plea in law, annul or vary Article 1(2)(f) of the contested decision to reflect the reduced duration of the infringement and, in consequence, vary Article 2(2) of that decision in so far as it concerns the applicants, and annul or reduce the fine imposed on them by those provisions;

–        order the Commission to pay the costs.

19      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicants to pay the costs.

 Law

20      In support of their action, the applicants rely on four pleas in law.

21      By the first plea in law, the applicants argue that, when calculating the fines, in setting the basic amounts, the Commission departed from its decision-making practice, committed errors of law and infringed the principle of proportionality and the principle of equal treatment by including in the value of sales to which the infringement relates for the purposes of point 13 of the 2006 Guidelines the whole of their sales to customers in the EEA on the relevant trade lanes. The applicants also claim that the Commission was in breach of the duty to state reasons.

22      In the second plea in law, the applicants maintain that the Commission departed from its decision-making practice, committed errors of law and infringed the principle of proportionality and the principle of equal treatment when calculating the fines, in setting the basic amounts, by failing to take into account the nature of the industry concerned. According to the applicants, the Commission was also in breach of its duty to state reasons.

23      The third plea in law concerns an alleged infringement of 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), since the Commission was not entitled to penalise the applicants for their participation in the AMS cartel for the period before 1 May 2004.

24      By the fourth plea in law, the applicants argue that the Commission’s decision not to seek settlement of the case within the meaning of Article 10a of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 TFEU] and [102 TFEU] (OJ 2004 L 123, p. 18), as amended by Commission Regulation (EC) No 622/2008 of 30 June 2008 (OJ 2008 L 171, p. 3), is vitiated by errors of assessment.

25      The applicants put forward those pleas in law in support not only of the application for annulment of the contested decision, but also of the request that the Court exercise its unlimited jurisdiction.

26      In that context, it must be recalled that the review of legality of decisions adopted by the Commission is supplemented by the unlimited jurisdiction which the Courts of the European Union are afforded by Article 31 of 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), in accordance with Article 261 TFEU. 

27      That jurisdiction empowers the Courts, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed. Where the findings on which the Commission has relied in order to determine the amount of the fine or periodic penalty payment imposed are vitiated by an illegality, but where the final amounts are to be regarded as appropriate, the unlimited jurisdiction empowers the Courts to maintain the amount of the fine.

28      It is therefore for the Court, in the exercise of its unlimited jurisdiction, to assess, on the date on which it adopts its decision, whether the amount of the fine imposed on the applicants was such as correctly to reflect the gravity and duration of the infringement in question (see, to that effect, judgment of 27 September 2012 in Shell Petroleum and Others v Commission, T‑343/06, ECR, EU:T:2012:478, paragraph 117 and the case-law cited).

29      It must, however, be pointed out that the exercise of unlimited jurisdiction does not amount to a review of the Court’s own motion, and borne in mind that proceedings before the Courts of the European Union are inter partes (judgment of 8 December 2011 in KME Germany and Others v Commission, C‑389/10 P, ECR, EU:C:2011:816, paragraph 131).

30      The Court deems it appropriate to examine the third plea in law, before examining the first, second and fourth pleas in law.

 The third plea in law: infringement of Article 1 of Regulation No 141

31      This plea in law concerns the conclusion of the Commission, in recitals 644 to 648 of the contested decision, that it was entitled to rely on Regulation No 1/2003 as the basis for penalising the applicants for their participation in the AMS cartel for the period before 1 May 2004. According to the Commission, before 1 May 2004, 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 exemption for transport provided for by Article 1 of Regulation No 141. In that context, the Commission relied on, inter alia, the finding that the participants in the AMS cartel coordinated their behaviour in order to remove uncertainty in relation to various elements of price in the freight forwarding sector and it was therefore the rates for freight forwarding services which were affected by that cartel and not the rates for transport services. Even if the freight forwarders had had contractual relationships with the air carriers, those relationships would have been the basis for the provision of air transport services, but not for the provision of freight forwarding services affected by the AMS cartel.

32      The applicants consider that those findings of the Commission are misconceived. Under Article 1 of Regulation No 141, the Commission had no power to penalise them for their participation in the AMS cartel for the period before 1 May 2004.

33      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.

34      However, under the legislation 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 exempt 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.

35      In essence, the applicants therefore claim that, before 1 May 2004, the AMS cartel was exempt from the scope of Regulation No 17 by virtue of Article 1 of Regulation No 141. According to the applicants, the services affected by the AMS cartel had to be regarded as transport services within the meaning of Article 1 of Regulation No 141. The core element of freight forwarding services was the supply of air transport capacity for the transport of cargo. The services with respect to which the AMS cartel was applied were directly related to the provision of air transport services. The Commission made an artificial distinction between the freight forwarding sector and the transport services sector. Air carriers and freight forwarders compete to supply the same air transport services, namely the supply of air transport capacity for the transportation of freight. The aviation rules relating to the issuing of airway bills and the rules governing liability in the area of the international transportation of freight make no distinction between air carriers and freight forwarders.

36      In that regard, the Court must first examine the applicants’ arguments concerning the interpretation of Article 1 of Regulation No 141, and then examine their arguments concerning the Commission’s conclusion that the AMS cartel affected not transport services, but freight forwarding services.

 The interpretation of Article 1 of Regulation No 141

37      The applicants claim that Article 1 of Regulation No 141 exempts services which are directly connected to the provision of transport services and that, as regards the application of that provision, no artificial distinction should be made between the freight forwarding sector and transport services.

38      The Commission rejects those arguments.

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

40      Moreover, 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).

41      In the light of the foregoing, the interpretation of Article 1 of Regulation No 141 advocated by the applicants cannot be accepted.

42      Article 1 of Regulation No 141 does not exempt the activities of an undertaking in their entirety solely because one part of its activities concern air transport services. Consequently, even if an undertaking seeks to obtain transport services on an upstream market, its activities on a downstream market, which are not directly related to transport services, are not exempted by virtue of that article.

43      Further, contrary to what is argued by the applicants, Article 1 of Regulation No 141 does not exempt all services that are directly related to transport services. It is clear from the wording of that provision, from recital 3 of that regulation and from the abovementioned case-law that, if it is to be exempted, a cartel must directly affect the supply of air transport services. Accordingly, that provision is confined to exempting cartels directly relating to transport services, but does not exempt cartels relating to services which are directly linked to transport services.

 The services affected by the AMS cartel

44      The applicants also call into question the Commission’s conclusion that the AMS cartel affected freight forwarding services as a package of services.

45      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.

46      Further, in, inter alia, recitals 209 to 212, 572, 621, 645, 868, 869 and 872 of the contested decision, the Commission found that, even though, by means of the AMS, CAF and PSS cartels, the freight forwarders entered into an agreement only on the AMS, CAF and PSS surcharges, those cartels affected freight forwarding services. First, in that context, the Commission relied on the consideration that those surcharges were part of the total price which the customers had to pay for the provision of freight forwarding services. Second, the Commission stated, with regard to the AMS cartel, that the freight forwarders which participated in that cartel were not merely suppliers of AMS filing services, did not regard third parties which were not freight forwarders and which offered individual AMS filing services as actual or potential competitors and did not attempt to involve such suppliers in the AMS cartel. Third, the Commission held that it was clear from the evidence in its possession that the decision of a freight forwarder not to pass on risk or cost factors to 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 client base or whether or not they gain new business opportunities at the expense of their competitors.

47      The applicants consider that those considerations are erroneous.

48      First, the applicants argue that, contrary to the Commission’s findings, the services affected by the AMS cartel were to be considered as transport services within the meaning of Article 1 of Regulation No 141, since the core element of freight forwarding services remains the indirect supply of air transport capacity for the transportation of cargo. The Commission ignored the fact that, from the perspective of the freight forwarders’ customers, the transport services were very important. The air carriers and the freight forwarders are therefore competing to supply the same air services, namely the supply of air transport capacity for the transportation of cargo.

49      The Commission disputes those arguments.

50      That submission must be rejected.

51      In that regard, it must be observed that, in the contested decision, the Commission did not dispute that, from the perspective of the freight forwarders’ customers, transport services constituted an important element of freight forwarding services. The Commission confined itself to finding that, even though freight forwarding services include transport services, the former have to be distinguished from the latter. Further, in so far as the applicants argue that, from the perspective of the freight forwarders’ customers, the services which the freight forwarders offer is the provision of cargo capacity, it is clear that that proposition is merely asserted and that the applicants offer no argument to demonstrate that the Commission’s findings as set out in paragraph 45 above, that a distinction must be made between freight forwarding services and transport services, are vitiated by error.

52      Second, the applicants claim that the Commission should not have relied on a formalistic assessment of the contractual relationship between shippers and freight forwarders and failed to take sufficient account of the nature of the underlying services. The freight forwarders acquire air transport capacity by means of leasing or block-space agreements with the airlines.

53      The Commission disputes those arguments.

54      This submission must also be rejected.

55      In that regard, it must be stated that the fact relied on by the applicants that they acquire air transport capacity by means of leasing or block-space agreements with the airlines does not allow the inference that their entire activity concerns transport services. Admittedly, to the extent that the freight forwarders acquire air transport services from the carriers, their activity concerns the air transport market. However, as stated in paragraph 42 above, the fact that the applicants seek to obtain services on the air transport services market is not sufficient ground for their entire activity to be exempted pursuant to Article 1 of Regulation No 141. Yet, according to the Commission’s finding as stated in paragraphs 45 and 46 above, the AMS cartel did not affect the transport services market, but the freight forwarding services market, on which market the freight forwarders offer freight forwarding services to their customers and which market is downstream of the transport services market.

56      In any event, the applicants do not challenge the Commission’s finding in recital 6 of the contested decision that the majority of the freight forwarders do not themselves provide air transportation. In so far as the applicants argue that they have their own air freight network, they do no more than refer to a leasing agreement with an air carrier.

57      Third, the applicants argue that air carriers and freight forwarders compete to supply the same air transport services.

58      The Commission disputes that argument.

59      In that regard, it must be observed that the applicants offer no argument capable of calling into question the Commission’s finding that freight forwarding services have to be distinguished from transport services, because, as a package of services, they meet a specific demand from customers, from whose perspective, economically, freight forwarding services and the individual component services are not interchangeable.

60      This submission must therefore be rejected.

61      Fourth, the applicants claim that the Commission’s finding in recital 647 of the contested decision that neither the absence of the freight forwarding service as a whole nor the non-performance of the AMS services could jeopardise the existence of the air transport service as such, is flawed. Further, the Commission’s finding in the same recital that the AMS services could also have been provided by undertakings whose business was unrelated to the transportation of goods, was irrelevant.

62      The Commission disputes those arguments.

63      In that regard, it is clear that, in recital 647 of the contested decision, the Commission recognised that compliance with the AMS procedure could constitute a legal precondition for air transportation and that a failure to comply with that procedure might jeopardise the transport by air of some goods. The Commission therefore took into account the importance of AMS filing services for the transport services.

64      Further, the Court must observe that the arguments put forward by the applicants, claiming a relationship between the AMS procedure and the transport services, fail to call into question either the Commission’s finding as to the fact that the AMS procedure might constitute a legal precondition for air transport or its conclusion that the AMS cartel affected freight forwarding services and not transport services. Contrary to what is argued by the applicants, Article 1 of Regulation No 141 does not exempt cartels affecting services directly related to transport services, but solely cartels directly relating to transport services (see paragraph 43 above).

65      That submission must therefore be rejected and there is no need to examine whether the Commission’s further findings, as stated in recital 647 of the contested decision, that, first, the absence of freight forwarding services or failure to comply with the AMS procedure would not jeopardise the possibility of air transport services as such and, second, the service relating to the AMS procedure could be supplied by service providers other than the air carriers or the freight forwarders, are of relevance.

66      Fourth, the applicants claim that the contractual relationships between carriers, the freight forwarders and the shippers are all subject to the rules of the International Air Transport Association (IATA), that, as the carriers do, the freight forwarders issue a waybill to their customers, and that air carriers and freight forwarders are mutually liable for loss, damage or delay of cargo transported. The applicants also argue that the rules relating to liability introduced by the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed in Warsaw on 12 October 1929, as amended by the Hague Protocol of 28 September 1955 and by the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed in Montreal on 28 May 1999 in case of loss, damage or delay of cargo transported makes no distinction between the liability of carriers and freight forwarders.

67      The Commission disputes those arguments.

68      This submission must also be rejected.

69      In that regard, suffice it to observe that neither the scope of the IATA rules nor the rules relating to liability introduced by the conventions referred to by the applicants are capable of calling into question the Commission’s finding that there was a specific demand for freight forwarding services as a package of services which, for the reasons set out in paragraph 45 above, economically, cannot be replaced by the individual component services.

70      Accordingly, none of the arguments put forward by the applicants is such as to demonstrate that the Commission misinterpreted or misapplied Article 1 of Regulation No 141. Further, nothing emerges from examination of those arguments to justify the Court, in the exercise of its unlimited jurisdiction, ordering a reduction in the fines imposed on the applicants.

71      Consequently, the third plea in law must be rejected in its entirety, not only as regards the application for annulment of the contested decision, but also as regards the request that the Court exercise its unlimited jurisdiction.

 The first and second pleas in law: errors concerning the setting of the fine and a breach of the duty to state reasons

72      The first and second pleas in law, which can conveniently be examined together, relate to the Commission’s findings, set out in recitals 857 to 890 of the contested decision, that, pursuant to point 13 of the 2006 Guidelines, in order to calculate the basic amount of the fine, it should use the values of the sales made by the applicants in the provision of freight forwarding services to customers in the EEA on the trade lanes affected by the AMS, CAF and PSS cartels.

73      As regards those findings, the applicants claim that, first, the Commission was in breach of its duty to state reasons and, second, failed to comply with the 2006 Guidelines and infringed Article 23(3) of Regulation No 1/2003, Article 49(3) of the Charter of Fundamental Rights of the European Union and the principle of proportionality. The Commission also infringed the principle of equal treatment by departing from its previous practice. The applicants also claim that competition authorities in other jurisdictions followed a different approach.

 The duty to state reasons

74      The applicants submit that the Commission failed to fulfil its obligation to state reasons. The Commission failed to provide a sufficient statement of reasons why its approach, of using as the starting point for the setting of fines the values of sales made by the applicants in the provision of freight forwarding services to their customers in the EEA on the trade lanes affected by the AMS, CAF and PSS infringements, had provided an appropriate proxy to reflect the economic importance of the infringement and most closely reflected the impact of the anticompetitive agreements on the freight forwarding sector.

75      The Commission disputes those arguments.

76      In that regard, it must be borne in mind that the statement of reasons for an individual decision must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and the Court to exercise its power of review (judgment of 2 April 1998 in Commission v Sytraval and Brink’s France, C‑367/95 P, ECR, EU:C:1998:154, paragraph 63).

77      As regards the determination of fines for infringements of Article 101 TFEU, the Commission must, in order to fulfil its obligation to state reasons, indicate in its decisions the factors on the basis of which the gravity and duration of the infringement were assessed (judgment of 16 November 2000 in Cascades v Commission, C‑279/98 P, ECR, EU:C:2000:626, paragraph 43).

78      In that context, it must be recalled that a detailed statement of reasons enables undertakings to become acquainted in detail with the method of calculating the fine imposed on them, which may serve to render the administrative act more transparent and facilitate the exercise by the General Court of its unlimited jurisdiction, which enables it to review not only the legality of the contested decision but also the appropriateness of the fine imposed (judgments of 16 November 2000 in KNP BT v Commission, C‑248/98 P, ECR, EU:C:2000:625, paragraph 46, and 16 June 2011 Team Relocations and Others v Commission, T‑204/08 and T‑212/08, ECR, EU:T:2011:286, paragraph 97).

79      It must also be recalled that the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (judgment of 29 September 2011 in Elf Aquitaine v Commission, C‑521/09 P, ECR, EU:C:2011:620, paragraph 146).

80      Last, in accordance with settled case-law, the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of the obligation to state reasons must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments in Commission v Sytraval and Brink’s France, cited in paragraph 76 above, EU:C:1998:154, paragraph 63, and Elf Aquitaine v Commission, cited in paragraph 79 above, EU:C:2011:620, paragraph 150).

81      The applicants’ arguments must be examined in the light of that case-law and those principles.

82      First, the Court must reject the applicants’ arguments that the Commission did not provide a sufficient statement of reasons for its approach, of using, as the starting point for setting the fines, the value of sales of freight forwarding services made by the applicants to which the AMS, CAF and PSS cartels related and did not state sufficient reasons for its decision not to take into account specific features of the infringements and of the freight forwarding sector.

83      In the first place, in recitals 857, 858 and 870 of the contested decision, the Commission stated that, pursuant to point 13 of the 2006 Guidelines, it was using the value of sales of goods or services made by the undertaking, to which the infringement directly or indirectly related, in the relevant geographic area within the EEA. In that context, it must be recalled that under point 6 of the 2006 Guidelines, ‘the combination of the value of sales to which the infringement relates and of the duration of the infringement is regarded as providing an appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement’.

84      In the second place, as stated in paragraphs 45 and 46 above, the Commission held, notably in recitals 3 to 6, 64 to 66, 209 to 212, 572, 614, 621, 645, 867 to 872 and 877 to 879 of the contested decision, that the services affected by the AMS, CAF and PSS cartels were freight forwarding services as a package of services, which not only encompass air transport services, but may also include warehousing services, cargo handling services, and services relating to logistics or ground transport, customs and fiscal matters. The reasons stated in those recitals therefore indicate, clearly and unequivocally, why the Commission considered that it should use the values of sales of freight forwarding services made by the applicants to customers in the EEA on the trade lanes affected by the AMS, CAF and PSS infringements.

85      In the third place, in recitals 865 to 890 of the contested decision, the Commission explained in detail why the circumstances referred to by the applicants and the other parties to whom the contested decision was addressed did not justify the Commission departing from the method provided for in point 6 of the guidelines.

86      Next, in so far as the applicants claim that the Commission failed to state sufficient reasons for its decision to take into account services which were not linked to the transportation of goods by air, suffice it to state that it is clear from the reasons stated in the contested decision that the Commission considered that the AMS, CAF and PSS cartels affected freight forwarding services and that those services encompassed not only transport services, but also all the services required to ensure that the cargo reached its destination.

87      This submission must therefore also be rejected.

88      Further, the applicants argue that the Commission did not, in recital 869 of the contested decision, sufficiently set out the reasons why the fact that the freight forwarding sector is a low profit margin sector was relevant to the choice of method for the setting of fines.

89      In that regard, it must be observed that, as stated in paragraph 46 above, recital 869 of the contested decision is in that part of the decision where the Commission set out the reasons why the AMS, CAF and PSS cartels affected the freight forwarding services as a package of services and not only some of their individual component services. It is very clear from that recital that, in the view of the Commission, the fact that the freight forwarding services market is characterised by low profit margins allows the inference 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, where it competes with other freight forwarders, since a small price increase or reduction or the imposition or non-imposition of a surcharge might play a decisive role, not least in the loss or gain of customers.

90      This submission must therefore be rejected.

91      In addition, the applicants argue that the Commission did not, in recital 868 of the contested decision, provide a sufficient statement of reasons why the surcharges provided for by the AMS, CAF and PSS cartels could be treated as the equivalent of standard price increases.

92      In that regard, first, in so far as, by that argument, the applicants seek to claim again that the Commission failed to explain sufficiently why it took account of the value of sales of freight forwarding services as a package of services, whereas the AMS, CAF and PSS cartels related only to the AMS, CAF and PSS surcharges, the argument must be rejected. In that regard, it must be recalled that, in accordance with the methodology of the 2006 Guidelines, where the Commission is determining the basic amount of the fine, it is to use the value of sales of goods or services, made by the undertaking, to which the infringement directly or indirectly relates, in the relevant geographic area within the EEA in a given year, and that the Commission stated that, in this case, the services at issue were freight forwarding services as a package of services (see paragraph 84 above).

93      Second, if the applicants are claiming that, in recital 868 of the contested decision, the Commission had failed to state sufficient reasons why the effects of the AMS, CAF and PSS cartels on the market could be compared to those of a cartel concerning final prices, that submission must also be rejected.

94      In that context, it must be observed that, according to the methodology of the 2006 Guidelines, as a first stage, the Commission is to determine the basic amount of the fine. At that stage, initially, pursuant to point 13 of the 2006 Guidelines, the Commission is to identify the value of the sales of the goods or services made by the undertaking, to which the infringement directly or indirectly relates, in the relevant geographic area within the EEA in the course of a particular year. Further, the Commission is to apply to that value a gravity factor in the form of a given percentage calculated according to the degree of gravity of the infringement and is to multiply that result by the number of years that the undertaking participated in the infringement. In cases of horizontal price-fixing, market-sharing and output-limitation agreements, the Commission is to include an additional amount. Accordingly, where the Commission identifies the value of sales of goods or services, it does not yet take account of the gravity of the infringement. Only when the Commission applies to that value a gravity factor in the form of a given percentage, determined according to the degree of gravity of the infringement, does it take account of the gravity of the cartel.

95      It is however clear that recital 868 of the contested decision is within Section 8.3.2, headed ‘The value of sales’ and not in Section 8.3.2.1, headed ‘Gravity’. It follows that, in recital 868 of the contested decision, the Commission should not have and did not make a decision on whether, with respect to their effects on the market, the AMS, CAF and PSS cartels could be treated as equivalent to standard price increases, that matter pertaining to the gravity of those cartels.

96      This submission must therefore be rejected as being unfounded.

97      Last, the applicants claim that the Commission did not set out the reasons why ‘the economic performance’ and ‘the magnitude of the added value created by the freight forwarders’ were not relevant.

98      In that regard, it must be observed, first, that the reasons why, in general, the Commission uses the value of sales are evident from points 5 and 6 of the 2006 Guidelines. Second, in recital 877 of the contested decision, referring to the judgment of 6 May 2009 in KME Germany and Others v Commission (T‑127/04, ECR, EU:T:2009:142), the Commission stated that even if the ‘gross profit’ was capable of demonstrating the economic performance of the freight forwarders and the magnitude of the added value created by them at the output, those were not, according to the Commission, relevant criteria for setting the fines in this case. Third, in recitals 876 and 878 to 882 of the contested decision, the Commission gave other reasons why it was entitled to take into account the value of services provided by third parties, which were contained in the freight forwarding services, in particular the value of transport services. Thus, the Commission held that the mere fact that the freight forwarders could not control such costs or that they constituted an essential part of the final price did not justify excluding those costs and that the freight forwarders who used the ‘consolidation’ business model transformed the service acquired from the carriers by adding additional services to it. Accordingly, it is clear that the Commission stated reasons, to the requisite legal standard, for its decision not to take into account the criteria of economic performance and magnitude of added value created by the freight forwarders.

99      Since the reasons stated in the contested decision meet the requisite legal standard, the Court must reject the arguments concerning a breach of the duty to state reasons.

 The submissions concerning failure to comply with the 2006 Guidelines, infringement of Article 23(3) of Regulation No 1/2003, Article 49(3) of the Charter of Fundamental Rights, and breach of the principle of proportionality

100    The applicants also make submissions seeking to demonstrate that the Commission’s findings that it was appropriate to use the value of sales made in the provision of freight forwarding services on the routes affected by the AMS, CAF and PSS cartels are not compatible with the 2006 Guidelines, Article 23(3) of Regulation No 1/2003, Article 49(3) of the Charter of Fundamental Rights or the principle of proportionality. In essence, they claim that the Commission disregarded the scope of the AMS, CAF and PSS cartels by including, in the value of sales, sales to which those cartels were not directly or indirectly related. The Commission failed to take into account the specific circumstances in which the surcharges were applied and therefore attributed excessive importance to the criterion of the value of sales, adopting a simplistic method of calculation which excluded other factors. The applicants also argue that the Commission failed to take sufficient account of the non-implementation of the cartels, the existence of an unlawful cartel on the air transport services market, the gain derived from and harm caused by the AMS, CAF and PSS cartels and their effects on the market. According to the applicants, the fines imposed therefore did not reflect the economic impact and gravity of those cartels, but were based on a gross overstatement of their economic impact and gravity.

101    The Commission disputes those arguments.

102    In that regard, it must be observed that, under Article 49(3) of the Charter of Fundamental Rights, the severity of penalties must not be disproportionate to the infringement and, under Article 23(3) of Regulation No 1/2003, in order to determine the amount of the fine, the Commission must have regard to the gravity and duration of the infringement.

103    As regards the principle of proportionality and the principle that the punishment must fit the offence, those principles require that fines must not be disproportionate to the objectives pursued, that is to say, to compliance with the European Union competition rules, and that the amount of the fine imposed on an undertaking for an infringement in competition matters should be proportionate to the infringement, seen as a whole, having regard, in particular, to its gravity. In particular, the principle of proportionality obliges the Commission to set the fine proportionately to the factors taken into account for the purposes of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified (see, to that effect, judgment of 11 July 2014 in Sasol and Others v Commission, T‑541/08, ECR, EU:T:2014:628, paragraph 316).

104    Further, it must be recalled that, in order to assess the gravity of an infringement of European Union competition law, the Commission must take account of a large number of factors, the nature and importance of which vary according to the type of infringement in question and the particular circumstances of the case. Those factors may, depending on the circumstances, include the volume and value of the goods in respect of which the infringement was committed and the size and economic power of the undertaking and, consequently, the influence which the undertaking was able to exert on the market (judgments of 7 June 1983 in Musique diffusion française and Others v Commission, 100/80 to 103/80, ECR, EU:C:1983:158, paragraph 121; 3 September 2009 Prym and Prym Consumer v Commission, C‑534/07 P, ECR, EU:C:2009:505, paragraph 96; and KME Germany and Others v Commission, cited in paragraph 29 above, EU:C:2011:816, paragraphs 58 and 59).

105    As regards, more specifically, the volume and value of the goods which are the subject of the infringement, the Court has previously held that, while it is undeniable that the turnover of an undertaking or of a market is, as a factor for assessing the gravity of an infringement, necessarily vague and imperfect, turnover is, notwithstanding that it is approximate, currently considered, by the EU legislature, the Commission and the Court, as an adequate criterion, in the context of competition law, for assessing the size and economic power of the undertakings concerned (judgment in KME Germany and Others v Commission, cited in paragraph 98 above, EU:T:2009:142, paragraph 93).

106    The proportion of the overall turnover which derives from the sale of the goods or services which are the subject of the infringement best reflects the economic importance of that infringement.

107    Those principles are reflected in the 2006 Guidelines, which lay down a general method for the calculation of the amount of fines. As stated in paragraph 83 above, it is apparent from point 6 of the 2006 Guidelines that the combination of the value of sales to which the infringement relates and of the duration of the infringement is regarded as providing an appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement.

108    The 2006 Guidelines provide that, as a first stage, the Commission is to determine the basic amount of the fine by following the methodology described in paragraph 94 above. As a second stage, the Commission is to take account of aggravating or mitigating circumstances.

109    In adopting the 2006 Guidelines, the Commission imposed a limit on the exercise of its discretion. The Commission therefore cannot, without giving reasons, depart from the methodology laid down in those Guidelines under pain of being found, where appropriate, to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (judgment of 28 June 2005 in Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, ECR, EU:C:2005:408, paragraph 211).

110    Nonetheless, point 37 of the 2006 Guidelines permits the Commission to depart from the general methodology laid down by those guidelines, in order to take account of the particularities of a given case or to achieve an adequate level of deterrence.

111    The applicants’ arguments must be examined in the light of those principles and that case-law.

–       The sales made to which the AMS, CAF and PSS cartels relate

112    The applicants consider that the Commission should not have used the value of sales made in the provision of freight forwarding services as a package of services. The Commission’s finding that the freight forwarders enable their customers to purchase a certain number of services in one package and to save time and money was not sufficient ground for the view that the AMS, CAF and PSS cartels affected freight forwarding services as a package of services encompassing all the services required for the shipping of freight. The Commission failed to recognise that those cartels were limited to the imposition of surcharges, the objective of which was to offset additional costs arising from the provision of a specific service or other risks or extra costs to which the applicants were exposed and therefore had no connection with the base freight rate or the prices of other services provided by third parties. The surcharges were represented as a separate line item on the bills. Further, the Commission failed to take account of the fact that, to a large extent, the applicants provided brokering services and prefinanced services supplied by third parties. The applicants did no more than ‘pass on’ the transport services. Accordingly, in their bills, the applicants indicated the prices for the various services provided by third parties. The costs of the services provided by third parties, which represented a very substantial proportion of the payments made by their customers, in particular transport services, over which the applicants had no control and which could easily have been identified in this case, cannot be regarded as input costs for the provision of freight forwarding services and do not appropriately reflect the economic importance of freight forwarding services. Further, the Commission took into account services not related to transport of goods by air, such as cargo pick-up services, trucking services, ground handling services at airports, warehouse services and customs clearance services.

113    The Commission disputes those arguments.

114    In the first place, as regards the arguments concerning the nature of the services at issue, it must be recalled that, under point 13 of the 2006 Guidelines, the Commission is to identify the value of the sales of goods or services to which the infringement directly or indirectly relates.

115    In this case, the value of the sales of services to which the AMS, CAF and PSS cartels related was the value of sales made in the provision of freight forwarding services as a package of services.

116    As stated in paragraphs 44 to 59 above, there is a specific demand for freight forwarding services as a package of services.

117    Further, it must be observed that the AMS, CAF and PSS cartels affected freight forwarding services as a package of services.

118    As regards the AMS cartel, as stated in paragraph 46 above, the Commission found that, first, all the undertakings which participated in the AMS cartel were freight forwarders and that none of them were merely suppliers of AMS filing services; second, those undertakings had not considered such suppliers to be actual or potential competitors; third, they had not sought to involve those suppliers in the AMS cartel; and, fourth, by means of that cartel, their objective was to limit competition with respect to freight forwarding services as a package of services.

119    On the basis of those findings, the Commission was entitled to hold, without committing any error of law, that the aim of that cartel was not to restrict competition with respect to AMS filing services as individual services, but competition with respect to freight forwarding services as a package of services.

120    That conclusion cannot be called into question by the arguments put forward by the applicants, namely, first, that the AMS cartel affected only AMS services, second, those services had specific features and were not integrated in the basic freight transport services and, third, that those services could be undertaken by the owner of the cargo, by the carrier or by intermediaries. Admittedly, the fact that there is a demand for AMS filing services and that third party non-freight forwarders offer those services may demonstrate that there is a market for those individual services, but fails to demonstrate that the cartel between the freight forwarders affected those individual services.

121    As regards the CAF cartel, considerations analogous to those with respect to the AMS cartel apply.

122    As regards the PSS cartel, suffice it to state that the PSS surcharge did not relate to any particular service, but was designed solely to pass on cost or risk factors to the freight forwarders’ customers.

123    Accordingly, the Commission did not exceed the self-imposed limits in point 13 of the 2006 Guidelines by using the values of sales made by the applicants in the provision of freight forwarding services as a package of services and not solely the values of sales made with the AMS, CAF and PSS surcharges.

124    In the second place, the Court must observe that none of the circumstances referred to by the applicants oblige the Commission to depart from the general methodology laid down by point 13 of 2006 Guidelines, pursuant to point 37 of those guidelines.

125    Contrary to what is argued by them, the applicants cannot be regarded as being mere intermediaries, offering ‘brokering services’.

126    In that regard, the Court must observe that, in, inter alia, recitals 65, 878 and 879 of the contested decision, the Commission acknowledged that the freight forwarders were in a position of intermediaries between the carrier and the shipper and could adopt a great variety of business models.

127    Nonetheless, it is clear that, in the situation where a freight forwarder does not pass on the transport costs to its customers, and where its income is limited to a commission paid by the carrier, no problem arises, since only the amount of the commission is reflected in its turnover.

128    As regards the situation where a freight forwarder passes on to its customers the transport costs which it has itself had to pay or will have to pay to third parties, it must be stated that, as is apparent from the Commission’s findings as summarised in paragraph 45 above, from an economic perspective, the role of a freight forwarder is not confined to being a mere intermediary. The freight forwarder transforms the services acquired from third parties and other inputs into integrated freight forwarding services, which enable their customers to save time and money and therefore respond to a specific demand which is not met by the individual services which are components of the freight forwarding services. In the light of the foregoing, in that situation, the Commission is entitled to use the value of the freight forwarders’ sales for the purposes of point 13 of the 2006 Guidelines.

129    Further, the Court must reject the submissions concerning the claim that, in the value of sales for the purposes of point 13 of the 2006 Guidelines, the Commission included, first, services that were not related to the air transport of goods, such as cargo pick-up services, trucking services, ground handling services at airports, warehouse services and customs clearance services and, second, costs for services performed by third parties.

130    Contrary to what is argued by the applicants, the Commission was not required to deduct the costs of services which are not transport services or services performed by third parties from the values of sales of freight forwarding services.

131    As stated above, those services must be considered to be inputs for the freight forwarding services. Yet there are in all industrial sectors costs inherent in the final product which the manufacturer cannot control but which nevertheless constitute an essential element of its business as a whole. It is not therefore appropriate to deduct the costs of inputs, which are inherent in the prices of the goods and services sold, from the value of sales, even where the cost of inputs constitutes a significant part of the value of sales (judgment in KME Germany and Others v Commission, cited in paragraph 29 above, EU:C:2011:816, paragraphs 58 to 65, and KME Germany and Others v Commission, cited in paragraph 98 above, EU:T:2009:142, paragraph 91). Admittedly, that case-law concerns a case in which the 2006 Guidelines were not yet applicable. Nonetheless, that case-law can be applied to those guidelines. The considerations underpinning that case-law relate, generally, to the use of turnover in the calculation of the amount of fines, in other words there is an objective criterion which is closely connected with the infringement at issue (see, in that regard, Opinion of Advocate General Wathelet in Guardian Industries and Guardian Europe v Commission, C‑580/12 P, ECR, EU:C:2014:272, point 59).

132    In that context, the Court must reject the applicants’ argument that, in this case, the costs of the services offered by third parties were readily identifiable. That argument cannot call into question the findings set out in paragraph 131 above.

133    Further, the applicants claim that, in the judgment of 13 December 2001 in Krupp Thyssen Stainless and Acciai speciali Terni v Commission (T‑45/98 and T‑47/98, ECR, EU:T:2001:288), the Court, and, in Cases COMP/35814 and COMP/39234 — Alloy Surcharge, the Commission, set the fine by taking into account only the surcharge and not the overall price of the products affected by the cartel providing for the surcharge.

134    This submission must also be rejected.

135    Admittedly, in those cases, the infringement at issue concerned the reference value used to calculate surcharges on the price of stainless steel. However, it cannot be inferred from either the judgment of the Court or the decision of the Commission that, for the determination of the value of sales of products or services made, to which the infringement relates, within the meaning of point 13 of 2006 Guidelines, only the amount of the surcharge may be taken into account. First, it is apparent that, in those cases, the Commission did not apply the 2006 Guidelines, but the former guidelines, namely the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3), which laid down a different methodology and which did not use as the starting point for the calculation of fines the value of sales of goods or services made by the undertaking to which the infringement directly or indirectly relates. Second, as regards paragraph 108 of the abovementioned judgment, on which the applicants rely in support of their argument, it is apparent that that paragraph is within a section of the Court’s findings where the Court confined itself to examining the merits of a submission that the Commission had committed an error of assessment of the facts by disregarding the practical arrangements of the cartel at issue. Consequently, contrary to what is argued by the applicants, no useful guidance can be drawn from paragraph 108 of that judgment with respect to the application of point 13 of the 2006 Guidelines.

136    Accordingly, contrary to what is argued by the applicants, the nature of the freight forwarding services and of the AMS, CAF and PSS cartels did not preclude the Commission from using the overall turnover which the applicants achieved in the provision of those services on the trade lanes concerned, and not deducting therefrom the costs of transport services or other services, supplied by third parties, but which are part of the package of services that make up freight forwarding services.

–       The application of the AMS, CAF and PSS surcharges

137    The applicants argue that the Commission failed to take sufficient account of the fact that the application of the surcharges had been minimal, or non-existent, in any event with respect to some of their customers.

138    The Commission disputes that argument.

139    In that regard, first, it must be recalled that, pursuant to point 13 of the 2006 Guidelines, the Commission is to use the value of sales to which the infringement relates, and the implementation of the infringement is not taken into account. It therefore does not follow from point 13 that only the value of sales resulting from transactions which were actually affected by the unlawful cartels may be taken into consideration in order to calculate the value of sales (see, to that effect, judgment of 16 June 2011 in Putters International v Commission, T‑211/08, ECR, EU:T:2011:289, paragraph 58).

140    Nonetheless, in that context, it must also be recalled that, in accordance with the case-law, the concept of the value of sales referred to in point 13 of the 2006 Guidelines cannot extend to encompassing sales made by the undertaking in question which do not fall, directly or indirectly, within the scope of the alleged cartel (judgment of 11 July 2013 in Team Relocations and Others v Commission, C‑444/11 P, EU:C:2013:464, paragraphs 73 to 78).

141    In that context, account must be taken of the applicants’ argument that the AMS, CAF and PSS surcharges could not be applied to their most important customers, with whom they had contracts for a duration of a year or longer, until those contracts were renegotiated.

142    In that regard, first, it must be stated that the applicants offer no evidence from which it can be established that, when the freight forwarders agreed to impose the AMS, CAF and PSS surcharges on their customers, they decided to exclude customers with whom they had existing contracts. On the contrary, it is apparent from recital 871 of the contested decision, which has not been challenged by the applicants, that the intention of the parties was plainly to implement the AMS, CAF and PSS cartels over the entire market and that the limited implementation of the cartels was due mainly to the customers’ reluctance to accept the new measures and not to a decision of the freight forwarders themselves. Accordingly, that argument fails to demonstrate a limitation on the scope of those cartels for the purposes of the case-law mentioned in paragraphs 139 to 140 above.

143    Further, in the circumstances of this case, the Commission was not obliged to depart from the general methodology provided for by point 13 of the 2006 Guidelines, under point 37 of those guidelines. The Courts of the European Union have never imposed on the Commission the obligation to establish in every case the individual sales which were affected by the cartel (judgment in Putters International v Commission, cited in paragraph 139 above, EU:T:2011:289, paragraph 60). On the contrary, as is apparent from the case-law of the Court of Justice, if the concept of the value of sales were limited to those with respect to which it is established that they were actually affected by a cartel entered into by a given undertaking the result would be to minimise artificially the economic importance of that cartel, since the mere fact that a limited amount of direct evidence of sales actually affected by the cartel had been found would lead to the imposition of a fine which bore no actual relation to the scope of the cartel in question. Such a reward for secrecy would also adversely affect the objective of the effective investigation and sanctioning of infringements of Article 101 TFEU and, therefore, cannot be permitted (judgment in Team Relocations and Others v Commission, cited in paragraph 140 above, EU:C:2013:464, paragraphs 76 and 77).

144    Consequently, the Court must reject the argument concerning the application of the AMS, CAF and PSS surcharges.

–       The existence of a cartel affecting air transport services

145    The applicants argue that the seriousness of the error committed by the Commission is clearly illustrated by the fact that the costs for the air transport services were reflected in the values of sales of freight forwarding services, although the prices of air transport services had been illegally inflated by a cartel among the carriers. The cartel affecting the transport services market distorted the prices for transport services.

146    The Commission disputes those arguments.

147    In that regard, at the outset, it must be observed that the 2006 Guidelines contain no rule which expressly provides that the existence of an upstream cartel is to be taken into account in the calculation of fines.

148    The Court must therefore examine whether the existence of a cartel affecting a market upstream of the market affected by the infringement for which a fine was imposed represents a circumstance that obliges the Commission to depart from the general methodology laid down in point 13 of the 2006 Guidelines.

149    In that context, it must be recalled that the use of the criterion of the value of sales as the starting point for the calculation of fines finds its justification in, inter alia, the fact that the part of the overall turnover that derives from the sale of the goods or services which are the subject matter of the infringement best reflects the economic importance of that infringement (see paragraphs 105 and 106 above) and is an objective criterion which can be easily applied.

150    The fact that the air transport services market was affected by a cartel is not such as to invalidate the Commission’s finding that the values of sales made by the applicants on the freight forwarding services market, on the trade lanes affected by the AMS, CAF and PSS cartels, are indeed able to reflect the economic importance of their participation in that infringement. First, those sales represent the turnovers generated by the applicants in the specific market conditions. Second, there is an objective link between the AMS, CAF and PSS cartels and those turnovers which reflect the relative weight of the applicants’ participation.

151    Further, it must be observed that if an approach were adopted whereby the existence of an unlawful cartel affecting an upstream market would compel the Commission to adjust the value of sales to which an infringement affecting a downstream market relates, the result would be to introduce an element of uncertainty at the very first stage of the calculation of fines. First, the amount of the deductions to be made would generally be difficult to determine. Second, in order to respect the principle of equal treatment, deductions would have to be made not only in the circumstance where an unlawful cartel might affect an upstream market, but, more generally, in all circumstances where factors to be considered as contrary to EU law might have a direct or indirect impact on the prices of the goods or services concerned. Third, the result of such an approach would be to create the risk that the basis for the calculation of the amount of a fine would be challenged after the adoption of the contested decision, in circumstances where factors liable to have a direct or indirect impact on the prices of inputs were discovered after that time. The approach advocated by the applicants would therefore be likely to encourage endless, insoluble disputes, including allegations of unequal treatment.

152    In the light of the foregoing, the Court must conclude that the existence of a cartel affecting a market upstream of the market affected by the infringements for which fines were imposed cannot be deemed to be a circumstance that obliges the Commission to depart from the general methodology laid down in point 13 of the 2006 Guidelines.

153    Accordingly, the Court must reject the argument relating to the existence of a cartel affecting the transport services market.

–       The assumed overcharging, the gain achieved and the harm caused

154    The applicants claim that the value of sales chosen by the Commission does not reflect the economic impact and gravity of the AMS, CAF and PSS cartels, since the Commission failed to take sufficient account of the assumed overcharging arising from those cartels, the gain achieved by them or the harm caused by them. The actual gain achieved and harm caused by those cartels were negligible.

155    The Commission disputes those arguments.

156    In that regard, it must be observed, first, that neither point 13 nor any other point of the 2006 Guidelines provides that the value of sales must be limited to reflect the economic harm caused by the infringement.

157    Second, the circumstances referred to by the applicants did not oblige the Commission to depart from the general methodology laid down in point 13 of the 2006 Guidelines, under point 37 of those guidelines.

158    It is admittedly true that, in the calculation of fines, the value of sales should not be given disproportionate importance (judgment in KME Germany and Others v Commission, cited in paragraph 29 above, EU:C:2011:816, paragraph 60).

159    However, in that regard, it must be recalled that the value of sales is used as a proxy for the economic importance of the infringement, not only because it can best reflect the economic importance of that infringement and the relative weight of each undertaking participating in the infringement, but also because it is an objective criterion which is easy to apply. That latter aspect of the value of sales means that the action of the Commission is more foreseeable for undertakings and enables them to assess the size of the fine they are liable to incur when they decide to take part in an unlawful cartel. Use of the criterion of the value of sales in point 13 of the 2006 Guidelines therefore pursues, inter alia, an objective of general deterrence.

160    Further, it must be observed that the value of sales is only one criterion, among many, which is taken into account by the general methodology laid down by the 2006 Guidelines. Even if the circumstances referred to by the applicants, such as the gain obtained or the harm caused, are of relevance to the calculation of fines, under that methodology, they could be taken into consideration at later stages of that calculation, such as the assessment of the degree of gravity of the infringement, of the existence of mitigating or aggravating circumstances or even of the ability to pay of the undertakings concerned. Therefore, even if, in this case, the Commission was obliged to take into consideration the circumstances referred to by the applicants in the later stages of the determination of the amount of the fine, the Commission was not obliged, for that reason, to depart from point 13 of the 2006 Guidelines, under point 37 of those guidelines.

161    Accordingly, the arguments that the Commission should not have used the value of sales made in the provision of freight forwarding services, having regard to the assumed overcharging, the gain obtained or the harm caused, must be rejected.

–       The competitiveness factors affected, the gravity of the infringement and the effects on the market

162    The applicants argue that the Commission failed to take account of the fact that the imposition of surcharges concerned solely the AMS, the CAF and the PSS and that the surcharges represented only a very small percentage of the overall price. The objective of those cartels was to impose surcharges on the freight forwarders’ customers, in order at least to offset the costs arising from that service or those extra costs. If the freight forwarders had acted independently, that could also have had the consequence that the costs or risks covered by those cartels would have been passed on to the freight forwarders’ customers. As regards other factors, the market remained competitive. Accordingly, particularly in recital 868 of the contested decision, the Commission should not have treated the AMS, CAF and PSS cartels as a standard price increase. The choice by the Commission in the contested decision to use the values of sales, encompassing all sales made by the applicants in the provision of freight forwarding services on the trade lanes affected by the cartels, was appropriate only if the Commission established that the cartels at issue had affected all the various services and all the components reflected in the prices which they charged their customers.

163    The Commission disputes those arguments.

164    In that regard, it must be recalled that, since the AMS, CAF and PSS cartels affected freight forwarding services as a package of services, the Commission was entitled to use as the starting point for the calculation of the fine the overall turnover achieved by freight forwarders in the provision of those services on the trade lanes concerned, irrespective of the gravity of that infringement (see paragraphs 114 to 136 and 158 to 160 above).

165    Further, in so far as, by their arguments, the applicants seek to argue that the Commission failed to take sufficient account of the fact that, with respect to their effects on the market, the AMS, CAF and PSS cartels may not be treated in the same way as a cartel concerning the overall prices of freight forwarding services, suffice it to state that, according to the general method laid down by the 2006 Guidelines, that aspect is to be taken into account at a later stage, when the degree of gravity is determined, that being assessed, under point 20 of those guidelines, on a case-by-case basis for all types of infringements, taking account of all the relevant circumstances of the case (see paragraphs 93 and 95 above).

166    Accordingly, the Commission did not disregard the 2006 Guidelines. Nor did the Commission infringe Article 23(3) of Regulation No 1/2003, Article 49(3) of the Charter of Fundamental Rights, or the principle of proportionality, since none of those rules preclude the circumstances relied on by the applicants being taken into account at a later stage in the calculation of fines.

167    Consequently, the applicants’ arguments that, by using the values of sales made in the provision of the freight forwarding services affected by the AMS, CAF and PSS cartels, the Commission failed to take sufficient account of the nature of those cartels, must also be rejected.

–       The examples referred to by the applicants

168    The applicants also introduce examples which, in their opinion, are such as to demonstrate that the Commission’s approach is erroneous.

169    First, they argue that the errors made by the Commission in the calculation of the fines can also be illustrated by considering a hypothetical infringement where a number of surcharges are applied on the same trade lane. In such a situation, the effect of the Commission’s approach would be grossly to overstate the cumulative economic impact of the infringements by imposing a fine set on the basis of the values of sales larger than the sales actually made on the particular trade lane.

170    This submission must be rejected.

171    In that regard, it is clear, at the outset, that, in the situation envisaged by the applicants, where three surcharges are applied on the same trade lane, it would have be examined whether such conduct should be classified as a single and continuous infringement. Yet, in this case, the applicants do not challenge the finding made by the Commission in recitals 1 and 551 to 553 of the contested decision, that the CAF, AMS and PSS infringements constitute three distinct infringements. Further, it must be observed that the applicants do not claim that, in this case, the AMS, CAF and PSS cartels overlap in scope and that the result is that the amount of the fines was disproportionate. Accordingly, the Court must reject that argument, and there is no need to give a ruling on whether, where there are various cartels which overlap in their temporal or geographic scope, it may possibly be appropriate to apply a correction factor in order to ensure that fines are not disproportionate.

172    Second, the applicants claim that the approach followed by the Commission leads to absurdity. To take a hypothetical example, if supermarkets were to have entered into an unlawful cartel concerning the price of bread, then, adopting the Commission’s approach, it would be necessary to impose on them a fine based on the aggregate turnover for their entire grocery business.

173    This submission must also be rejected.

174    As stated above, the AMS, CAF and PSS cartels affected freight forwarding services as a package of services for which there was a specific demand. The applicants have not however explained how, in the hypothetical situation envisaged by them, the cartel would affect a package of goods or services.

175    In the light of the foregoing, it must be concluded that none of the arguments put forward by the applicants is capable of demonstrating that the Commission, by using the values of sales made in the provision of freight forwarding services affected by the AMS, CAF and PSS cartels, disregarded the 2006 Guidelines or infringed Article 23(3) of Regulation No 1/2003, Article 49(3) of the Charter of Fundamental Rights, or was in breach of the principle of proportionality.

 The principle of equal treatment

176    The applicants argue that the Commission was in breach of the principle of equal treatment. Even though its practice in previous decisions does not in itself serve as a legal framework for fines, the Commission cannot treat similar situations in a different way across various cases. Yet, in the contested decision, the Commission applied, with no objective justification, a method for calculating the value of sales that was different from its prior decisional practice. In its earlier practice, according to the applicants, the Commission accepted that, for a fine to be reflective of the gravity of an infringement, the value of sales must be defined carefully so as to reflect accurately the sales that are related to the infringement and the particular circumstances of that infringement.

177    The Commission disputes those arguments.

178    In that regard, it must be recalled, at the outset, that the Court of Justice has repeatedly held that the Commission’s practice in previous decisions did not serve as a legal framework for the imposition of fines in competition matters, that being defined by Article 23(2) and (3) of Regulation No 1/2003, as supplemented by the guidelines, and that the Commission’s decisions concerning other cases could give only an indication for the purpose of determining whether there might be discrimination (judgment of 7 June 2007 in Britannia Alloys & Chemicals v Commission, C‑76/06 P, ECR, EU:C:2007:326, paragraph 60).

179    Further, as regards the argument that, in other cases, the Commission was careful to ‘calibrate precisely’ the value of sales, in order to ensure that it was an appropriate proxy, suffice it to recall that examination of the submissions seeking to demonstrate that the Commission disregarded the scope of the infringements did not reveal any error by the Commission in that regard.

180    Moreover, and in any event, in so far as the applicants refer to previous decisions by the Commission, it is apparent that the applicants fail to demonstrate how the circumstances on which those decisions were based are to be regarded as comparable to the circumstances of this case.

181    First, the applicants claim that, in its decision in Case COMP/39.309 — LCD, the Commission considered that the value of sales to which the infringement related corresponded to the direct sales of the LCD panels which were the object of the infringement and the indirect sales of LCD panels incorporated into IT products or televisions by members of the same corporate group. As regards the second category of sales, the Commission took into account only the sales attributable to the incorporated LCD panels, and therefore not the sales of IT products or televisions.

182    It is however clear that neither the circumstances in the LCD case nor the approach adopted by the Commission in that case can be compared to those at issue in this case. In this instance, the services directly affected by the infringement are freight forwarding services as a package of services. In contrast, in the LCD case, the cartel was not one directly affecting IT products and televisions and affecting the price of LCD panels as inputs to those products, but a cartel directly affecting the sale of LCD panels.

183    Contrary to what is argued by the applicants, the Commission’s decision in the LCD case is therefore in no way indicative that the Commission’s approach in this case is erroneous

184    Second, in so far as the applicants argue that, in the decision in Case COMP/35814 — Alloy Surcharge, the Commission confined itself to imposing a fine to penalise collusion in relation to reference values for alloys in the formula for calculating the alloy surcharge, suffice it to refer back to the considerations set out in paragraphs 133 to 135 above.

185    Third, if, by referring to other Commission decisions, the applicants also seek to argue that the Commission proceeded differently in comparable situations, those submissions must be rejected pursuant to Article 44(1)(c) of the Rules of Procedure of the General Court of 2 May 1991. It follows from that provision that the facts and law on which an application is based must be apparent from the text of the application itself, even if only stated briefly. It must however be stated that, beyond the fact that the applicants claim that in those cases the Commission was careful to ‘calibrate precisely’ the value of sales so as to reflect the context and particular characteristics of an infringement, they do not explain how the facts of those cases are comparable to those of this case and how the approach adopted by the Commission in those cases differs from that adopted in this case.

186    Consequently, the submissions alleging a breach of the principle of equal treatment must be rejected.

 The practice of other competition authorities

187    The applicants maintain that the approach adopted by the Commission is not compatible with that of other competition authorities. Thus, the United States Department of Justice made no reference to the Panalpina group’s aggregate air freight forwarding sales on the relevant trade lanes, but took into account, first, the pecuniary gain achieved by the Panalpina group and, second, the trade affected. The Swiss Competition Authority, for its part, adopted a methodology based on gross profit, that is, the values of sales after deduction of the value of services supplied by third parties.

188    The Commission disputes those arguments.

189    Those arguments must also be rejected. In that regard, suffice it to state that the legality or appropriateness of the fines imposed by the Commission must be assessed with regard to EU law, and cannot depend on the law of a non-member State or on the method used by the competition authorities of non-member States.

 Conclusion

190    First, in the light of the foregoing, it must be concluded that none of the arguments put forward by the applicants is such as to demonstrate that, by using the values of sales made in the provision of the freight forwarding services affected by the AMS, CAF and PSS cartels, the Commission erred in law.

191    As regards the exercise by the Court of its unlimited jurisdiction, it must be observed that examination of the arguments put forward by the applicants has not disclosed anything inappropriate in the determination, by the Commission, of the value of sales.

192    In that context, the Court must reject, in particular, the applicants’ argument that other methods of calculation would have been more appropriate to reflect correctly the gravity of the AMS, CAF and PSS cartels.

193    The applicants propose that the calculation of the value of sales for each of the cartels should be based solely on the revenue derived from the surcharges which were applied, might realistically have been applied or which could have been applied or by taking into account solely gross profit, that is, the value of sales of freight forwarding services after deduction of the value of services supplied by third parties.

194    Those methods of calculation cannot however be regarded as more appropriate than that applied by the Commission. First, notwithstanding that it is approximate, the proportion of the overall turnover deriving from the sale of products or services in respect of which the infringement was committed is best able to reflect the economic importance of that infringement (see paragraphs 105 and 106 above). Second, the revenue derived solely from the surcharges or the gross profit do not sufficiently reflect the fact that the AMS, CAF and PSS cartels affected the freight forwarding services as a package of services and that the activity of the freight forwarders was not confined to a mere intermediary role (see paragraphs 114 to 131 above).

195    Further, the Court must reject the applicants’ suggestion that the value of sales of freight forwarding services should be used, but with account being taken solely of the sales to which the surcharges were in fact applied or could realistically have been applied, since such an approach cannot be regarded as appropriate, for the reasons set out in paragraphs 137 and 144 above.

196    Moreover, in so far as the applicants argue that the Commission should have applied a percentage reduction of the fine in order to recognise the small proportion of the overall price represented by the AMS, CAF and PSS surcharges, suffice it to observe that (i) this constitutes the method laid down by the 2006 Guidelines, according to which the basic amount is to be calculated by applying a proportion of the value of sales, determined according to the degree of gravity of the infringement, multiplied by the number of years of the infringement, to the value of sales of goods or services in question and (ii) the Commission followed this method in the contested decision.

197    Second, it must be observed that the applicants explained in their reply that the purpose of their arguments was solely to challenge the Commission’s determination of the value of sales, but not its conclusions concerning the subsequent stages in the calculation of the fines, such as the determination of the degree of gravity or whether there were mitigating or aggravating circumstances.

198    Accordingly, it is not the task of the Court to examine whether the arguments put forward by the applicants are such as to contest the merits or appropriateness of the Commission’s conclusions concerning the subsequent stages in the calculation of the fines (see paragraph 29 above).

199    Third, and in any event, even if it were the task of the Court to undertake such an examination, it is apparent that the applicants’ arguments fail to demonstrate that the Commission’s findings concerning the determination of the degree of gravity or the lack of mitigating circumstances are erroneous or inappropriate.

200    Setting the gravity percentage at 16% cannot be regarded as inappropriate. In that context, first, it must be observed that the AMS, CAF and PSS cartels constitute horizontal cartels relating to an element of the price of freight forwarding services and must therefore be regarded as serious restrictions on competition, and borne in mind that it is stated in point 23 of the 2006 Guidelines that, with respect to horizontal price-fixing agreements, the proportion of the value of sales taken into account by the Commission will generally be set at the higher end of the scale, that is up to 30%. In the second place, having regard to the nature of the services concerned, the fact that those cartels related only to the AMS, CAF and PSS surcharges does not permit the inference that the gravity percentages of 16% were not appropriate. As the Commission explained in recital 869 of the contested decision, and as is confirmed by the evidence referred to therein, the concerted action with respect to the passing on of cost and risk factors by means of the imposition of surcharges was capable of having a not insignificant impact on the conduct of the freight forwarders and on the structure of the market. In the third place, as regards the implementation of the cartels, it is clear that the applicants do not challenge the Commission’s finding in recital 902 of the contested decision that the cartels were implemented at least in part and that their implementation was monitored.

201    Further, the existence of an upstream cartel and its effect on the prices of transport services cannot be considered to be a mitigating circumstance. First, it is not possible to link the existence of a cartel affecting an upstream market to one of the mitigating circumstances expressly mentioned in point 29 of the 2006 Guidelines. Second, even if the list set out in point 29 of the 2006 Guidelines is not exhaustive, it is clear that the existence of a cartel affecting the transport services market is an external factor which cannot diminish the relative gravity of the participation of the applicants in the AMS, CAF and PSS cartels. Third, it must also be recalled that the Court has previously had occasion to examine and reject a comparable argument (judgment of 14 May 2014 in Reagens v Commission, T‑30/10, EU:T:2014:253, paragraph 289). Accordingly, in this case, the existence of a cartel affecting transport services cannot be considered to be a mitigating circumstance.

202    In addition, it must be observed that, even though it is conceivable that low profit margins may be indicative of an undertaking’s reduced ability to pay notwithstanding the size of its turnover, no argument has been put forward in this case to permit the inference that the fines imposed were excessive taking into consideration the applicants’ ability to pay.

203    In the light of the foregoing, the Court must reject the first and second pleas in law in their entirety, both in so far as they are relied on in support of the application for annulment of the contested decision and in so far as they are relied on in support of the application for variation of the fines.

 The fourth plea in law, concerning the Commission’s decision not to initiate discussions with a view to reaching a settlement and not to pursue such settlement

204    By the fourth plea in law, the applicants claim that the Commission’s decision not to seek settlement of the case within the meaning of Article 10a of Regulation No 773/2004, as amended, is vitiated by errors of assessment.

205    First, the applicants argue that, before the Commission could decide whether this case could suitably be resolved by means of settlement, it was obliged to make contact with the parties to whom the contested decision was addressed. The question of whether those parties were willing to take part in discussions with a view to reaching a settlement was one of the relevant factors that the Commission should have taken into account. Yet in this case the Commission failed to contact the applicants and when, on 21 November 2008, the applicants raised the prospect of settlement, the Commission cursorily rejected that suggestion. Consequently, in this case, the Commission was not in a position to come to a fully informed decision.

206    The Commission disputes those arguments. In particular, the Commission contests the applicants’ assertion that the applicants contacted the Commission on 21 November 2008 and suggested that it should opt for settlement of the case.

207    In that regard, first, it must be observed that the approach advocated by the applicants amounts, in essence, to the view that the Commission is obliged to make contact with the parties concerned and to explore their interest in achieving a settlement before it can decide whether to opt for such settlement.

208    Such an approach is incompatible with the applicable provisions.

209    Under Article 10a(1) of Regulation No 773/2004, as amended, the Commission may set a time limit within which the parties may indicate in writing that they are prepared to engage in settlement discussions with a view to possibly introducing settlement submissions. It is therefore plain from the wording of that provision that the Commission is not obliged to make contact with the parties, but that it has a discretion in that regard. That reading of Article 10a(1) of Regulation No 773/2004, as amended, is confirmed by recital 4 of Regulation No 622/2008, which states that the Commission has a broad margin of discretion to determine in which cases it may appropriately explore the parties’ interest to engage in settlement discussions, to decide to engage in such discussions or to discontinue them or definitely to settle the case.

210    Further, in so far as the applicants argue that the Commission departed from its decision-making practice, suffice it to observe that, in accordance with point 6 of the Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation No 1/2003 in cartel cases (OJ 2008 C 167, p. 1), where the Commission considers that a particular case may, in principle, be suitable for settlement, it is supposed to explore the possible interest in settlement of all the parties, although the parties to the proceedings do not have a right to that procedure. It is plain from point 6 that it is only if the Commission were to consider that a case is suitable for settlement that it would be supposed to explore the interest of the undertakings concerned. Accordingly, point 6 also provides for the possibility that the Commission may consider that a case is not suitable for settlement without, first, having made contact with the parties concerned and having explored their interest in achieving a settlement.

211    It follows that, contrary to what is argued by the applicants, the mere fact that the Commission did not explore their interest and the interest of the other undertakings concerned in achieving a settlement is not in itself capable of demonstrating that the contested decision is vitiated by errors.

212    Consequently, the Court must reject that argument, and there is no need to examine whether the applicants established to the requisite legal standard that they had contacted the Commission on 21 November 2008.

213    Secondly, the applicants claim that, in the circumstances of this case, the Commission’s decision not to take the option of settlement is vitiated by errors of assessment.

214    The Commission disputes those arguments.

215    In that regard, it must initially be recalled that the aim of settlement is to make optimum use of the Commission’s resources through the imposition of effective and timely punishment. According to recital 4 of Regulation No 622/2008, the Commission must take account of the probability of reaching a common understanding, regarding the scope of the potential objections, with the parties involved within a reasonable time frame. As is stated in that recital, in that context, the Commission may take account of factors such as the number of parties involved, foreseeable conflicting positions on the attribution of liability, and the extent to which the facts may be disputed. It is also stated in that recital that the Commission may take account of concerns other than those relating to possible efficiency gains, such as the possibility of setting a precedent.

216    The Court must examine, in the light of the foregoing considerations, whether the arguments put forward by the applicants are capable of demonstrating that the Commission committed an error of assessment.

217    First, the applicants maintain that the number of parties should not, in itself, have precluded settlement of the case.

218    This submission must be rejected.

219    In that regard, it must be recalled that the efficiency gains arising from a settlement procedure are greater when all the parties concerned accept settlement. In such a situation, the Commission is not required to permit access to the file and to organise a hearing. The Commission may also confine itself to drafting a succinct version of the statement of objections in one language. On the other hand, if one or more parties concerned are not willing to enter into talks on settlement, the efficiency gains are more limited. Accordingly, it is not misconceived to consider that a large number of parties concerned may have a negative effect on the time the Commission may require to reach a common understanding regarding the scope of the potential objections with the parties concerned.

220    In the light of the fact that, in this case, the number of parties concerned was 47, the Commission did not err in considering that that aspect of the case was not conducive to achieving a settlement.

221    Second, the applicants argue that the parties concerned might have been fewer in number if the Commission had decided to initiate separate procedures for each of the AMS, CAF, NES and PSS cartels, instead of grouping them together. In that context, the applicants claim that the Commission cannot take advantage of a situation for which it is responsible.

222    This submission must also be rejected.

223    In that regard, it must be observed that both the option of settlement and the option of parallel treatment of a number of infringements in one and the same procedure are designed to achieve efficiency gains. Yet since no provision requires that either of those two options be preferred, the Commission’s choice to deal with a number of infringements in a single procedure is not restricted by the option of settlement. Accordingly, the Commission cannot be criticised for choosing to deal with the AMS, CAF, NES and PSS cartels together and for assessing whether settlement was appropriate by taking into consideration the procedural situation resulting from that choice.

224    Third, the applicants claim that it was unlikely that the applicants or other parties would have significantly challenged the facts underlying the objections raised by the Commission. Most of the addressees of the decision had applied for leniency and would therefore have had a strong incentive to reach a settlement with the Commission and achieve a dual reduction of the amount of the fine. A significant proportion of the addressees of the decision had already shown their willingness to settle comparable cases before other competition authorities.

225    This submission must also be rejected.

226    In that regard, it is clear that, first, a not insignificant number of the undertakings concerned had not cooperated with the Commission on the basis of the 2006 Leniency Notice and, second, some aspects of the decision, such as the attribution of liability to the economic successors and the determination of the value of sales made to which the cartels were related, were likely to be contested by some of the parties to whom the contested decision was addressed. Accordingly, contrary to what is argued by the applicants, it could not be ruled out that some aspects of the contested decision were likely to be challenged by its addressees.

227    Fourth, the applicants argue that the competition authorities in a number of non-member States, such as the United States, considered it appropriate to reach settlements with regard to the same or similar infringements.

228    This submission must also be rejected.

229    In that regard, suffice it to state that the Commission’s decision must be assessed on the basis of the applicable EU legislation, and the fact that non-member States may have opted to proceed by settlement cannot therefore demonstrate that the Commission committed an error of assessment. In any event, in so far as the applicants refer to examples pertaining to States where a system of plea bargaining is used, it must be observed that the settlement procedure provided for in Article 10a(1) of Regulation No 773/2004, as amended, is substantially different from such a system.

230    Fifth, the applicants claim that the Commission was not entitled to take the view that the settlement procedure was inappropriate due to the need to establish a precedent for future cases, since the substance of the infringements cannot be regarded as novel and there were no aggravating circumstances.

231    That submission must also be rejected, there being no need to determine whether the Commission was entitled to rely on such a consideration. First, it is not at all apparent from the contested decision that the Commission did rely on such a consideration. Second, the consideration that the probability of reaching a common understanding with the parties involved regarding the scope of the potential objections did not appear sufficiently high, having regard to, inter alia, the large number of parties, was sufficient ground in itself for the Commission’s decision not to opt for settlement.

232    Sixth, it must be observed that, on the one hand, the particular circumstances of the case, namely the fact that the number of parties concerned was high, that a not insignificant proportion of the undertakings had not cooperated with the Commission, and that some aspects of the Commission’s approach were likely to be disputed is sufficiently clear from the content of the contested decision (see, in particular, the listing of the addressees of the contested decision, Section 2.2 thereof, on the undertakings subject to the proceedings before the Commission, Section 8.5 thereof, on the application of the 2006 Leniency Notice, recitals 644 to 648 thereof, on the competence of the Commission and recitals 857 to 890 thereof, on the determination of the value of sales). On the other hand, the legal context of the contested decision, namely recital 4 of Regulation No 622/2008 and the Commission Notice on the conduct of settlement procedures entails that, from the perspective of the Commission, those circumstances were or were not relevant to its choice of whether to opt for settlement of the case.

233    Accordingly, the Court must therefore reject the fourth plea in law in its entirety, not only as regards the application for annulment of the contested decision, but also as regards the request that the Court exercise its unlimited jurisdiction, and there is no need to give a ruling on whether the Commission’s decision not to explore the willingness of the parties to enter into a settlement can be the subject of proceedings, as is disputed by the Commission. None of the arguments put forward by the applicants is such as to demonstrate that the Commission’s assessment, that this case was not suitable for settlement, is vitiated by errors or that the amount of the fine is not appropriate.

234    Since all the pleas in law must be rejected, the Court must dismiss the action in its entirety.

 Costs

235    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 and the Commission has applied for costs, the applicants must be ordered to pay the costs.

On those grounds,

THE GENERAL COURT (Ninth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Panalpina World Transport (Holding) Ltd, Panalpina Management AG and Panalpina China Ltd to pay the costs.

Delivered in open court in Luxembourg on 29 February 2016.

[Signatures]

Table of contents

Background to the dispute and the contested decision

Procedure before the General Court and forms of order sought

Law

The third plea in law: infringement of Article 1 of Regulation No 141

The interpretation of Article 1 of Regulation No 141

The services affected by the AMS cartel

The first and second pleas in law: errors concerning the setting of the fine and a breach of the duty to state reasons

The duty to state reasons

The submissions concerning failure to comply with the 2006 Guidelines, infringement of Article 23(3) of Regulation No 1/2003, Article 49(3) of the Charter of Fundamental Rights, and breach of the principle of proportionality

– The sales made to which the AMS, CAF and PSS cartels relate

– The application of the AMS, CAF and PSS surcharges

– The existence of a cartel affecting air transport services

– The assumed overcharging, the gain achieved and the harm caused

– The competitiveness factors affected, the gravity of the infringement and the effects on the market

– The examples referred to by the applicants

The principle of equal treatment

The practice of other competition authorities

Conclusion

The fourth plea in law, concerning the Commission’s decision not to initiate discussions with a view to reaching a settlement and not to pursue such settlement

Costs

* Language of the case: English.

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