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

JUDGMENT OF THE GENERAL COURT (Fourth Chamber, Extended Composition)

30 March 2022 (*)

(Competition – Agreements, decisions and concerted practices – Market for airfreight – Decision finding an infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and Switzerland on Air Transport – Coordination of elements of the price of air freight services (fuel surcharge, security surcharge, payment of commission on surcharges) – Exchange of information – Territorial jurisdiction of the Commission – Single and continuous infringement – Equal treatment – Obligation to state reasons)

In Case T‑323/17,

Martinair Holland NV, established in Haarlemmermeer (Netherlands), represented by M. Smeets, lawyer,

applicant,

v

European Commission, represented by A. Dawes and C. Vollrath, acting as Agents, and by B. Doherty, Barrister,

defendant,

APPLICATION under Article 263 TFEU for the annulment of Commission Decision C(2017) 1742 final of 17 March 2017 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case AT.39258 – Airfreight) in so far as it relates to the applicant,

THE GENERAL COURT (Fourth Chamber, Extended Composition),

composed of H. Kanninen (Rapporteur), President, J. Schwarcz, C. Iliopoulos, D. Spielmann and I. Reine, Judges,

Registrar: S. Bukšek Tomac, Administrator,

having regard to the written part of the procedure and further to the hearing on 2 July 2019,

gives the following

Judgment

I.      Background to the dispute

1        The applicant, Martinair Holland NV, is an air transport company. It operates in the market for airfreight services (‘freight’).

2        In the freight sector, airlines provide for the carriage of cargo by air (‘the carriers’). As a general rule, carriers supply freight services to freight forwarders, who arrange the transport of that cargo on behalf of shippers. In return, those freight forwarders pay those carriers a price consisting, on the one hand, of rates calculated on a per kilogram basis and negotiated either on a long-term basis (typically one season, namely six months) or on an ad hoc basis, and, on the other hand, of various surcharges, which are intended to cover certain costs.

3        There are four different types of carrier: (i) those which exclusively operate dedicated freighter airplanes, (ii) those with cargo capacity on passenger flights, (iii) those with both dedicated freighter airplanes and with cargo capacity on passenger flights (combination airlines) and (iv) integrators with dedicated freighter airplanes providing both integrated express delivery services and general cargo services.

4        No carrier is able to serve all major cargo destinations in the world with sufficient frequency, and therefore agreements among carriers enabling them to increase their network coverage or improve their schedules have become common, including in the context of broader commercial alliances between carriers. At the material time, those alliances included, inter alia, the WOW Alliance, which comprised Deutsche Lufthansa AG (‘Lufthansa’), SAS Cargo Group A/S (‘SAS Cargo’), Singapore Airlines Cargo Pte Ltd (‘SAC’) and Japan Airlines International Co. Ltd (‘Japan Airlines’).

A.      Administrative procedure

5        On 7 December 2005, the Commission of the European Communities received an application for immunity under the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) lodged by Lufthansa and its subsidiaries, Lufthansa Cargo AG and Swiss International Air Lines AG (‘Swiss’). The application alleged that extensive anticompetitive contacts were being maintained between a number of carriers with regard, in particular, to:

–        the fuel surcharge (‘FSC’), which had been introduced to tackle rising fuel costs;

–        the security surcharge (‘SSC’), which had been introduced to address the costs of certain security measures imposed following the terrorist attacks of 11 September 2001.

6        On 14 and 15 February 2006, the Commission carried out unannounced inspections at the premises of a number of carriers pursuant to Article 20 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1).

7        Following the inspections, a number of carriers, including the applicant, submitted an application under the 2002 notice referred to in paragraph 5 above.

8        On 19 December 2007, after sending a number of requests for information, the Commission addressed a statement of objections to 27 carriers, including the applicant (‘the Statement of Objections’). It stated that those carriers had infringed Article 101 TFEU, Article 53 of the Agreement on the European Economic Area (EEA) and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (‘the EC-Switzerland Air Transport Agreement’) by participating in a cartel relating, in particular, to the FSC, the SSC and a refusal to pay commission on surcharges (‘the refusal to pay commission’).

9        In response to the Statement of Objections, the addressees submitted written observations.

10      An oral hearing was held from 30 June to 4 July 2008.

B.      Decision of 9 November 2010

11      On 9 November 2010, the Commission adopted Decision C(2010) 7694 final relating to a proceeding under Article 101 [TFEU], Article 53 of the EEA Agreement and Article 8 of the [EC-Switzerland Air Transport Agreement] (Case COMP/39258 – Airfreight) (‘the Decision of 9 November 2010’). That decision is addressed to 21 carriers (‘the carriers incriminated in the Decision of 9 November 2010’), namely:

–        Air Canada;

–        Air France-KLM (‘AF-KLM’);

–        Société Air France (‘AF’);

–        Koninklijke Luchtvaart Maatschappij NV (‘KLM’);

–        British Airways plc;

–        Cargolux Airlines International SA (‘Cargolux’);

–        Cathay Pacific Airways Ltd (‘CPA’);

–        Japan Airlines Corp.;

–        Japan Airlines;

–        Lan Airlines SA;

–        Lan Cargo SA;

–        Lufthansa Cargo;

–        Lufthansa;

–        Swiss;

–        the applicant;

–        Qantas Airways Ltd;

–        SAS;

–        SAS Cargo;

–        Scandinavian Airlines System Denmark-Norway-Sweden (‘SAS Consortium’);

–        SAC;

–        Singapore Airlines Ltd (‘SIA’).

12      The objections raised provisionally against the other addressees of the Statement of Objections were abandoned (‘the non-incriminated carriers’).

13      The grounds of the Decision of 9 November 2010 described a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement, covering the territory of the EEA and of Switzerland, by which the carriers incriminated in the Decision of 9 November 2010 had coordinated their behaviour as regards the pricing of freight services.

14      The operative part of the Decision of 9 November 2010, in so far as it related to the applicant, read as follows:

‘Article 1

The following undertakings infringed Article 101 of the TFEU and Article 53 of the EEA Agreement by participating in an infringement that comprised both agreements and concerted practices through which they coordinated various elements of price to be charged for [freight] services on routes between airports within the EEA, for the following periods:

…

(i)      [the applicant] from 22 January 2001 until 14 February 2006;

…

Article 2

The following undertakings infringed Article 101 of the TFEU by participating in an infringement that comprised both agreements and concerted practices through which they coordinated various elements of price to be charged for [freight] services on routes between airports within the European Union and airports outside the EEA, for the following periods:

…

(o)      [the applicant] from 1 May 2004 until 14 February 2006;

…

Article 3

The following undertakings infringed Article 53 of the EEA Agreement by participating in an infringement that comprised both agreements and concerted practices through which they coordinated various elements of price to be charged for [freight] services on routes between airports in countries that are Contracting Parties of the EEA Agreement but not Member States and third countries, for the following periods:

…

(m)      [the applicant] from 19 May 2005 until 14 February 2006;

…

Article 4

The following undertakings infringed Article 8 of the [EC-Switzerland Air Transport Agreement] by participating in an infringement that comprised both agreements and concerted practices through which they coordinated various elements of price to be charged for [freight] services on routes between airports within the European Union and airports in Switzerland, for the following periods:

…

(i)      [the applicant] from 1 June 2002 until 14 February 2006;

…

Article 5

For the infringements referred to in Articles 1 to 4 [of the Decision of 9 November 2010], the following fines are imposed:

…

(m)      [the applicant]: EUR 29 500 000;

…

Article 6

The undertakings listed in Articles 1 to 4 shall immediately bring to an end the infringements referred to in those Articles, in so far as they have not already done so.

They shall refrain from repeating any act or conduct described in Articles 1 to 4, and from any act or conduct having the same or similar object or effect.’

C.      Action challenging the Decision of 9 November 2010 before the Court

15      By application lodged at the Registry of the General Court on 24 January 2011, the applicant brought an action seeking annulment of Articles 1 to 7 of the Decision of 9 November 2010, in so far as they concerned the applicant or, at the very least, a reduction in the amount of the fine imposed on it. The other carriers incriminated in the Decision of 9 November 2010, with the exception of Qantas Airways, also brought actions against that decision before the Court.

16      By judgments of 16 December 2015, Air Canada v Commission (T‑9/11, not published, EU:T:2015:994), Koninklijke Luchtvaart Maatschappij v Commission (T‑28/11, not published, EU:T:2015:995), Japan Airlines v Commission (T‑36/11, not published, EU:T:2015:992), Cathay Pacific Airways v Commission (T‑38/11, not published, EU:T:2015:985), Cargolux Airlines v Commission (T‑39/11, not published, EU:T:2015:991), Latam Airlines Group and Lan Cargo v Commission (T‑40/11, not published, EU:T:2015:986), Singapore Airlines and Singapore Airlines Cargo Pte v Commission (T‑43/11, not published, EU:T:2015:989), Deutsche Lufthansa and Others v Commission (T‑46/11, not published, EU:T:2015:987), British Airways v Commission (T‑48/11, not published, EU:T:2015:988), SAS Cargo Group and Others v Commission (T‑56/11, not published, EU:T:2015:990), Air France-KLM v Commission (T‑62/11, not published, EU:T:2015:996), Air France v Commission (T‑63/11, not published, EU:T:2015:993), and Martinair Holland v Commission (T‑67/11, EU:T:2015:984), the Court annulled the Decision of 9 November 2010, in whole or in part, in so far as it concerned Air Canada, KLM, Japan Airlines and Japan Airlines Corp., CPA, Cargolux, Latam Airlines Group SA (formerly Lan Airlines) and Lan Cargo, SAC and SIA, Lufthansa, Lufthansa Cargo and Swiss, British Airways, SAS Cargo, SAS Consortium and SAS, AF-KLM, AF and the applicant, respectively. The Court found that that decision was vitiated by a defective statement of reasons.

17      In that regard, the Court held, in the first place, that the Decision of 9 November 2010 was vitiated by contradictions between the grounds and the operative part thereof. The grounds of the decision described a single and continuous infringement relating to all routes covered by the cartel, in which all the carriers incriminated in the Decision of 9 November 2010 had participated. By contrast, the operative part of that decision identified either four separate single and continuous infringements, or just one single and continuous infringement, liability for which was attributed only to the carriers which, as regards the routes mentioned in Articles 1 to 4 of that decision, participated directly in the unlawful conduct referred to in each of those articles or were aware of the collusion on those routes, and accepted the risk. Neither of those two readings of the operative part of the Decision of 9 November 2010 was consistent with the grounds for the decision.

18      The Court also rejected as incompatible with the grounds of the Decision of 9 November 2010 the alternative reading of the operative part proposed by the Commission, which was that the failure to mention some of the carriers incriminated in the Decision of 9 November 2010 in Articles 1, 3 and 4 of that decision could be explained by the fact that those carriers did not operate the routes referred to in those articles, and that those articles need not be interpreted as referring to separate single and continuous infringements.

19      In the second place, the Court held that the grounds of the Decision of 9 November 2010 contained significant internal inconsistencies.

20      In the third place, after noting that neither of the two possible readings of the operative part of the Decision of 9 November 2010 was consistent with the grounds thereof, the Court considered whether, in the context of at least one of those two possible interpretations, the internal contradictions of that decision were likely to undermine the applicant’s rights of defence and prevent the Court from conducting its review. As regards the first reading, namely that there were four separate single and continuous infringements, first of all, the Court held that the applicant had not been in a position to understand to what extent the evidence set out in the grounds and relating to the existence of a single and continuous infringement was liable to establish the existence of the four separate infringements found in the operative part, or to contest the sufficiency of that evidence. Second, it held that the applicant had not been able to understand the line of reasoning that had led the Commission to find it liable for an infringement, including in respect of routes which it did not operate within the parameters defined by each article of the Decision of 9 November 2010.

D.      Contested decision

21      On 20 May 2016, following the annulment ordered by the Court, the Commission sent a letter to the carriers incriminated in the Decision of 9 November 2010 which had brought an action against the latter before the Court to inform them that its Directorate-General (DG) for Competition intended to propose to it the adoption of a new decision in which it would find that they had participated in a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement on all of the routes referred to in that decision.

22      The addressees of the Commission’s letter referred to in paragraph 21 above were invited to make known their views on the Commission DG Competition’s intended decision within one month. All addressees, including the applicant, availed themselves of that possibility.

23      On 17 March 2017, the Commission adopted Decision C(2017) 1742 final relating to a proceeding under Article 101 [TFEU], Article 53 of the EEA Agreement and Article 8 of the [EC-Switzerland Air Transport Agreement] (Case AT.39258 – Airfreight) (‘the contested decision’). That decision is addressed to 19 carriers (‘the incriminated carriers’), namely:

–        Air Canada;

–        AF-KLM;

–        AF;

–        KLM;

–        British Airways;

–        Cargolux;

–        CPA;

–        Japan Airlines;

–        Latam Airlines Group;

–        Lan Cargo;

–        Lufthansa Cargo;

–        Lufthansa;

–        Swiss;

–        the applicant;

–        SAS;

–        SAS Cargo;

–        SAS Consortium;

–        SAC;

–        SIA.

24      In the contested decision, no objections are maintained against the other addressees of the Statement of Objections.

25      The grounds of the contested decision describe a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement, by which the incriminated carriers coordinated their behaviour as regards the pricing of freight services worldwide through the FSC, the SSC and the payment of commission on surcharges.

26      In the first place, in Section 4.1 of the contested decision, the Commission described the ‘basic principles and structure of the cartel’. In recitals 107 and 108 of that decision, the Commission stated that the investigations had uncovered a worldwide cartel based on a network of bilateral and multilateral contacts over a long period of time among competitors regarding the conduct which they had decided on, intended to adopt, or contemplated adopting with regard to various elements of the charges for freight services, namely the FSC, the SSC and the refusal to pay commission. It stated that the common objective of that network of contacts was to coordinate competitors’ pricing behaviour or to reduce uncertainty with regard to their pricing policies (‘the cartel at issue’).

27      According to recital 109 of the contested decision, the objective of the coordinated application of the FSC was to ensure that carriers throughout the world imposed a flat-rate surcharge per kilo for all relevant shipments. A complex network of mainly bilateral contacts among carriers was established to coordinate and monitor the application of the FSC, the precise date of application often, according to the Commission, being decided at local level usually with the principal local carrier taking the lead and others following. That coordinated approach was extended to the SSC and to the refusal to pay commission, with the result that the latter became net revenue for the carriers and created an additional incentive for them to continue with the coordination relating to the surcharges.

28      According to recital 110 of the contested decision, senior management in the head offices of a number of carriers were either directly involved in competitor contacts or regularly informed about them. In the case of the surcharges, the responsible head-office employees were in contact with each other when a change to the surcharge level was imminent. The refusal to pay a commission on surcharges was also confirmed on a number of occasions during contacts at head-office level. There were frequent contacts also at local level, partly to better implement the instructions received from the head offices and to adapt them to the local market conditions, and partly to coordinate and implement local initiatives. In this latter case, the head offices generally authorised or were informed of the proposed action.

29      According to recital 111 of the contested decision, carriers contacted each other bilaterally, in small groups and in some instances in large multilateral forums. Local associations of carrier representatives were used, in particular in Hong Kong and Switzerland, to discuss yield-improvement measures and coordinate surcharges. Meetings of alliances, such as the WOW Alliance, were also used for such purposes.

30      In the second place, in Sections 4.3, 4.4 and 4.5 of the contested decision, the Commission described the contacts concerning, respectively, the FSC, the SSC and the refusal to pay commission (‘the contacts at issue’).

31      Thus, first, in recitals 118 to 120 of the contested decision, the Commission summarised the contacts relating to the FSC as follows:

‘(118) A network of bilateral contacts built up from late 1999/early 2000 onwards involving a number of airlines that allowed information sharing concerning the actions of the participants throughout the network. Carriers contacted each other regularly to discuss any question that came up concerning the FSC, including changes to the mechanism, changes [to] the FSC level, consequent application of the mechanism, [and] instances when some airlines did not follow the system.

(119) Concerning the implementation of FSC at local level, a system was often applied whereby leading airlines on particular routes or in certain countries would announce the change first, and they would be followed by others …

(120) Anti-competitive coordination concerning the FSC took place mainly in four contexts: concerning the introduction of FSC in early 2000, the reintroduction of a fuel surcharge mechanism after the revocation of the planned [International Air Transport Association (IATA)] mechanism, the introduction of new trigger points (raising the maximum level of FSC) and most frequently at the point where the fuel indices were approaching the level at which an increase or decrease in the FSC would be triggered.’

32      Second, in recital 579 of the contested decision, the Commission summarised the contacts relating to the SSC as follows:

‘A number of [incriminated carriers] discussed, among others issues, their plans whether or not to introduce a SSC … Moreover, the amount of the surcharge and the timing of the introduction were also discussed. [The incriminated carriers] furthermore shared with each other ideas concerning the justification to be given to their customers. Ad hoc contacts concerning the implementation of the SSC continued throughout the years 2002-2006. The illicit coordination took place both at head office and local level.’

33      Third, in recital 676 of the contested decision, the Commission stated that the incriminated carriers had ‘continued to refuse commission on the surcharges and [had] confirmed their relevant intentions to each other in the framework of numerous contacts’.

34      In the third place, in Section 4.6 of the contested decision, the Commission carried out the assessment of the contacts at issue. The assessment of those relied on against the applicant is set out in recitals 785 to 788 of that decision.

35      In the fourth place, in Section 5 of the contested decision, the Commission applied Article 101 TFEU to the facts of the case, while stating, in footnote 1289 to that decision, that the considerations adopted also applied to Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement. Thus, first, in recital 846 of that decision, the Commission found that the incriminated carriers had coordinated their conduct or influenced price setting, ‘ultimately amounting to price fixing with regard to’ the FSC, the SSC and the payment of commission on surcharges. In recital 861 of that decision, the Commission described the ‘overall scheme to coordinate the pricing behaviour for [freight] services’, the investigation of which had revealed the existence of a ‘complex infringement consisting of various actions which [could] be either classified as an agreement or concerted practice, within which the competitors knowingly substituted practical cooperation between them for the risks of competition’.

36      Second, in recital 869 of the contested decision, the Commission found that the ‘conduct in question [constituted] a single and continuous infringement of Article 101 of the TFEU’. It thus found that the arrangements at issue pursued a single anticompetitive aim of distorting competition in the freight sector within the EEA, including when coordination took place at local level and experienced local variations (recitals 872 to 876), concerned a ‘single product/service’, namely ‘the provision of [freight] services and the pricing thereof’ (recital 877), concerned the same undertakings (recital 878), were of a single nature (recital 879) and related to three elements, namely the FSC, the SSC and the refusal to pay commission, which were ‘frequently discussed side by side in the same competitor contact’ (recital 880).

37      In recital 881 of the contested decision, the Commission added that ‘the majority of the parties’, including the applicant, were involved in all three elements of the single infringement.

38      Third, in recital 884 of the contested decision, the Commission concluded that the infringement at issue was continuous.

39      Fourth, in recital 903 of the contested decision, the Commission found that the conduct at issue had the object of restricting competition ‘at least in the [European Union], the EEA and Switzerland’. In recital 917 of that decision, the Commission added, in essence, that there was, therefore, no need to take into account the ‘actual effects’ of that conduct.

40      Fifth, in recitals 1024 to 1035 of the contested decision, the Commission found that the single and continuous infringement was likely to have an appreciable effect on trade between Member States, between Contracting Parties of the EEA Agreement and between contracting parties to the EC-Switzerland Air Transport Agreement.

41      Sixth, the Commission examined the limits of its territorial and temporal jurisdiction to find and penalise an infringement of the competition rules in the present case. First, in recitals 822 to 832 of the contested decision, under the heading ‘Jurisdiction of the Commission’, the Commission stated, in essence, that it would not apply, first, Article 101 TFEU to agreements and practices prior to 1 May 2004 concerning routes between airports within the European Union and airports outside the EEA (‘EU-third country routes’); next, Article 53 of the EEA Agreement to agreements and practices prior to 19 May 2005 concerning EU-third country routes and routes between airports in countries that are Contracting Parties of the EEA Agreement but are not EU Member States and airports in third countries (‘non-EU EEA-third country routes’ and, together with EU-third country routes, ‘EEA-third country routes’); and, lastly, Article 8 of the EC-Switzerland Air Transport Agreement to agreements and practices prior to 1 June 2002 concerning routes between airports within the European Union and Swiss airports (‘EU-Switzerland routes’). It also stated that the contested decision did ‘not purport to find an infringement of Article 8 of the [EC-Switzerland Air Transport Agreement] concerning freight services on routes between Switzerland and third countries’.

42      Second, in recitals 1036 to 1046 of the contested decision, under the heading ‘The applicability of Article 101 of the TFEU and Article 53 of the EEA Agreement to inbound routes’, the Commission rejected the arguments put forward by the various incriminated carriers that it had exceeded the limits of its territorial jurisdiction under the rules of public international law by finding and penalising an infringement of those two provisions on routes from third countries to the EEA (‘inbound routes’ and, as regards freight services offered on those routes, ‘inbound freight services’). In particular, in recital 1042 of that decision, it recalled the criteria which it considered to be applicable:

‘With respect to the extra-territorial application of Article 101 of the TFEU and Article 53 of the EEA Agreement these provisions are applicable to arrangements that are either implemented within the [European Union] (implementation theory) or that have immediate, substantial and foreseeable effects within the [European Union] (effects theory).’

43      In recitals 1043 to 1046 of the contested decision, the Commission applied the criteria in question to the facts of the present case:

‘(1043) In the case of [inbound freight services], Article 101 of the TFEU and Article 53 of the EEA Agreement are applicable because the service itself that is the subject of the price fixing infringement is to be performed and is indeed performed, in part, within the territory of the EEA. Moreover, many contacts by which the addressees coordinated surcharges and the non-payment of commission took place in the EEA or involved participants in the EEA.

(1044) … the example given in the [Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2008 C 95, p. 1 and corrigendum OJ 2009 C 43, p. 10)] is not relevant here. [That notice] relates to the geographic allocation of turnover of undertakings for the purpose of establishing whether the turnover thresholds of Article 1 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings [(OJ 2004 L 24, p. 1)] are met.

(1045) In addition, anticompetitive practices in third countries with regard to … freight transportation to the EU/EEA are liable to have immediate, substantial and foreseeable effects within the EU/EEA, as the increased costs of air transport to the EEA, and consequently higher prices of imported goods, are by their very nature liable to have effects on consumers in the EEA. In this case the anticompetitive practices eliminating competition between carriers offering [inbound freight services] were liable to have such effects also on the provision of [freight] services by other carriers within the EEA, between the different hub airports used by carriers from third countries in the EEA and airports of destination of those shipments in the EEA to which the carrier from the third country does not fly.

(1046) Finally, it has to be underlined that the Commission has found a world-wide cartel. The cartel was implemented globally and the cartel arrangements concerning inbound routes formed an integral part of the single and continuous infringement of Article 101 of the TFEU and Article 53 of the EEA Agreement. The cartel arrangements were in many cases organised centrally and the local personnel were merely implementing them. The uniform application of the surcharges on a world wide scale was a key element of the cartel.’

44      In the fifth place, in recital 1146 of the contested decision, the Commission found that the cartel at issue had started on 7 December 1999 and lasted until 14 February 2006. In the same recital, it stated that that cartel had infringed:

–        Article 101 TFEU, from 7 December 1999 to 14 February 2006, as regards air transport between airports within the European Union;

–        Article 101 TFEU, from 1 May 2004 to 14 February 2006, as regards air transport on EU-third country routes;

–        Article 53 of the EEA Agreement, from 7 December 1999 to 14 February 2006, as regards air transport between airports within the EEA (‘intra-EEA routes’);

–        Article 53 of the EEA Agreement, from 19 May 2005 to 14 February 2006, as regards air transport on non-EU EEA-third country routes;

–        Article 8 of the EC-Switzerland Air Transport Agreement, from 1 June 2002 to 14 February 2006, as regards air transport on EU-Switzerland routes.

45      In so far as the applicant is concerned, the Commission found that the duration of the infringement was from 22 January 2001 to 14 February 2006.

46      In the sixth place, in recital 1404 to the contested decision, the amount of the fine imposed on the applicant was set at EUR 15 400 000.

47      The operative part of the contested decision, in so far as it relates to the present dispute, reads as follows:

‘Article 1

By coordinating their pricing behaviour in the provision of [freight] services on a global basis with respect to the [FSC], the [SSC] and the payment of commission payable on surcharges, the following undertakings have committed the following single and continuous infringement of Article 101 [TFEU], Article 53 of [the EEA Agreement] and Article 8 of [the EC-Switzerland Air Transport Agreement] as regards the following routes and for the following periods.

(1)      The following undertakings have infringed Article 101 of the TFEU and Article 53 of [the] EEA Agreement as regards [intra-EEA] routes for the following periods:

…

(n)      [the applicant] from 22 January 2001 until 14 February 2006;

…

(2)      The following undertakings infringed Article 101 of the TFEU as regards [EU-third country] routes for the following periods:

…

(n)      [the applicant] from 1 May 2004 until 14 February 2006;

…

(3)      The following undertakings infringed Article 53 of the EEA Agreement as regards [non-EU EEA-third country] routes for the following periods:

…

(n)      [the applicant] from 19 May 2005 until 14 February 2006;

…

(4)      The following undertakings infringed Article 8 of the [EC-Switzerland Air Transport Agreement] as regards [EU-Switzerland] routes for the following periods:

…

(n)      [the applicant] from 1 June 2002 until 14 February 2006;

…

Article 2

[The] Decision … of 9 November 2010 is amended as follows:

In Article 5, points (j), (k) and (l) are repealed.

Article 3

For the single and continuous infringement referred to in Article 1 (and as regards British Airways … also for the aspects of Articles 1 to 4 of [the] Decision … of 9 November 2010] that have become final), the following fines are imposed:

…

(m)      [the applicant]: EUR 15 400 000;

…

Article 4

The undertakings listed in Article 1 shall immediately bring to an end the single and continuous infringement referred to in that Article in so far as they have not already done so.

They shall also refrain from repeating any act or conduct having the same or similar object or effect.

Article 5

This Decision is addressed to:

…

[the applicant]

…’

II.    Procedure and forms of order sought

48      By application lodged at the Court Registry on 29 May 2017, the applicant brought the present action.

49      The Commission lodged its defence at the Court Registry on 29 September 2017.

50      The applicant lodged its reply at the Court Registry on 2 January 2018.

51      The Commission lodged its rejoinder at the Court Registry on 1 March 2018.

52      On 24 April 2019, on a proposal from the Fourth Chamber, the Court decided, pursuant to Article 28 of its Rules of Procedure, to assign the present case to a chamber sitting in extended composition.

53      On 14 June 2019, in the context of the measures of organisation of procedure laid down in Article 89 of the Rules of Procedure, the Court put written questions to the parties. The parties replied within the prescribed period.

54      By letter of 27 June 2019, the parties were invited to submit their observations on the possible joinder of the present case with Case T‑325/17, KLM v Commission, for the purposes of the oral part of the procedure. The parties replied that they had no objections to such joinder.

55      By decision of 1 July 2019, the present case and Case T‑325/17, KLM v Commission, were joined for the purposes of the oral part of the procedure.

56      At the hearing on 2 July 2019, the parties presented oral argument and answered the questions put by the Court.

57      By order of 13 July 2020, the Court (Fourth Chamber, Extended Composition), considering that it lacked sufficient information and that it was necessary to invite the parties to submit their observations on an argument which had not been debated between them, ordered the reopening of the oral part of the procedure pursuant to Article 113 of the Rules of Procedure.

58      The parties replied within the prescribed period to a series of questions put by the Court on 15 July 2020, and then submitted observations on their respective replies.

59      By decision of 30 October 2020, the Court again closed the oral part of the procedure.

60      The applicant claims that the Court should:

–        annul the contested decision in its entirety in so far as it relates to the applicant;

–        in the alternative, annul Article 1(2)(n) and (3)(n) of the contested decision, in so far as the Commission held the applicant liable for an infringement on inbounds routes;

–        annul Article 1 and Article 1(1)(n),(2)(n), (3)(n) and (4)(n) of the contested decision in so far as the Commission found that the single and continuous infringement included the refusal to pay commission;

–        order the Commission to pay the costs.

61      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

III. Law

62      Before setting out the pleas in law which it formally raises in support of the present action, the applicant submits observations on the giving of effect to the judgment of 16 December 2015, Martinair Holland v Commission (T‑67/11, EU:T:2015:984) by the adoption of the contested decision. The Court considers it appropriate to address those observations (see paragraphs 63 to 78 below) before examining the pleas relied on in support of the claim for annulment (see paragraphs 79 to 286 below).

A.      The observations on the giving of effect to the judgment of 16 December 2015, Martinair Holland v Commission (Case T‑67/11)

63      As a preliminary point, the applicant makes a number of observations on the giving of effect to the judgment of 16 December 2015, Martinair Holland v Commission (T‑67/11, EU:T:2015:984) through the adoption of the contested decision.

64      The applicant observes that, in the grounds of the contested decision, the Commission does not confine itself to setting out the facts relating to the four sets of routes covered by the single and continuous infringement penalised in the operative part of that decision. According to the applicant, that raises two questions. The first question is how the ‘jurisdictional delineation’ in that operative part can be reconciled with the broader factual descriptions in those grounds, and in particular with the references to a ‘worldwide cartel’. The applicant argues that these grounds indicate that the scope of that decision does not extend to finding infringements of the competition rules other than those which relate to the routes and periods referred to in Article 1 of the contested decision. Unless that decision is to be regarded as contradictory, those references may therefore be understood only as a purely factual description of the conduct of the incriminated carriers, given solely to evidence the single and continuous infringement of narrower geographic scope found in that article. The applicant claims that it is also apparent from the Dutch-language version of the operative part of the contested decision that the expression ‘on a global basis’ (wereldwijd) refers less to the coordination among the addressees of the contested decision than to the ‘provision of freight services’. That wording emphasises that the ‘worldwide’ aspect of the case primarily reflects the fact that the FSC and the SSC were not, in principle, route-specific.

65      The applicant emphasises that the first question is of great importance in connection with actions for damages brought before national courts on the basis of the contested decision (‘actions for damages’). The applicant’s exposure in respect of those actions would increase considerably if it were to be held that the contested decision also covered routes and periods other than those referred to in Article 1 thereof. The assessment of the effect of that decision on those actions falls within the scope of the review which the Court must carry out.

66      The second question is whether, in so far as the operative part of the contested decision no longer makes any distinction between the liability of the addressees concerning routes (or sets of routes) for which they are held liable, the concept of damages based on the existence of a protection price can apply to all routes beyond the specific routes (or sets of routes) referred to in that operative part. On this point, the applicant states that the present action is based on a reading of the contested decision according to which the scope of that decision is strictly limited to the routes and periods which are found, in Article 1 of that operative part, to come within the single and continuous infringement of the competition rules. The applicant submits that that decision and the references to the global scope of the cartel at issue cannot be interpreted as meaning that infringements in connection with other routes or periods may be ascribed to it or that they provide grounds for the award of umbrella damages based on the existence of a protection price in respect of such routes.

67      The Commission replies that the applicant’s observations regarding the giving of effect to the judgment of 16 December 2015, Martinair Holland v Commission (T‑67/11, EU:T:2015:984) are not linked to any plea in law or any legal argument. In its rejoinder, the Commission adds that, in reality, the applicant is seeking to discuss the relationship between the grounds of the contested decision and the operative part thereof, so as to improve its position in actions for damages. However, it is not the task of the General Court, in an annulment action, to interpret a contested act in order to provide guidance to national courts hearing actions for damages. Such national courts can, if necessary, refer a question to the Court of Justice for a preliminary ruling.

68      In that connection, first, in so far as, in its observations on the giving of effect to the judgment of 16 December 2015, Martinair Holland v Commission (T‑67/11, EU:T:2015:984), the applicant sets out its views as to the scope of the contested decision, it should be noted that the applicant does not draw any conclusions from those observations for the purposes of reviewing the lawfulness of the contested decision. It has failed to explain how those observations relate to the pleas and complaints on which it relies in support of its action. The observations in question should therefore be rejected as inadmissible.

69      In any event, the Court cannot, in a declaratory judgment, provide clarification as to the scope of the contested decision. It should be borne in mind that there is no legal remedy in the field of litigation within the European Union which would allow the courts to take a position in this way (see, to that effect, judgments of 15 December 2005, Infront WM v Commission, T‑33/01, EU:T:2005:461, paragraph 171 and the case-law cited, and of 21 March 2012, Fulmen and Mahmoudian v Council, T‑439/10 and T‑440/10, EU:T:2012:142, paragraph 41 and the case-law cited).

70      The applicant’s argument that ‘the impact of the contested decision on [actions for damages] falls within the scope of the judicial review [of the Court]’ does not alter that conclusion. It should be recalled, as the Commission does, that the present proceedings have been brought under Article 263 TFEU, and that the purpose thereof is therefore not to provide the applicant with clarifications that it may consider useful for the purposes of defending itself in actions for damages, but rather solely to review the lawfulness of the contested decision (see, to that effect, order of 25 October 2011, Air France v Commission, T‑63/11, not published, EU:T:2011:629, paragraph 27).

71      Second, in so far as, by its observations on compliance with the judgment of 16 December 2015, Martinair Holland v Commission (T‑67/11, EU:T:2015:984), the applicant relies, in essence, on a contradiction between the grounds of the contested decision and Article 1 of that decision, it should be recalled that the principle of effective judicial protection is a general principle of EU law which is now enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). That principle, which corresponds, in EU law, to Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, requires that the operative part of a decision by which the Commission finds infringements of the competition rules must be particularly clear and precise and that the undertakings held liable and penalised must be in a position to understand and to contest the imputation of liability and the imposition of those penalties, as set out in the wording of that operative part (see judgment of 16 December 2015, Martinair Holland v Commission, T‑67/11, EU:T:2015:984, paragraph 31 and the case-law cited).

72      It is in the operative part of its decisions that the Commission must indicate the nature and extent of the infringements which it penalises. As regards in particular the scope and nature of the infringements penalised, it is thus in principle the operative part, and not the statement of reasons, which is important. Only where there is a lack of clarity in the terms used in the operative part should reference be made, for the purposes of interpretation, to the statement of reasons contained in a decision (see judgment of 16 December 2015, Martinair Holland v Commission, T‑67/11, EU:T:2015:984, paragraph 32 and the case-law cited).

73      In the present case, it must be observed at the outset that, contrary to the applicant’s claims, the Commission did not conclude, in the operative part of the contested decision, that there was a worldwide infringement. The reference to the coordination of the incriminated carriers’ ‘pricing behaviour in the provision of [freight] services on a global basis’ in the introductory paragraph of Article 1 of that decision is simply a finding of fact which the Commission classifies in Article 1(1) to (4) as an infringement of the competition rules applicable in respect of those routes which the Commission regarded, for the periods at issue, as falling within the scope of its jurisdiction. These are intra-EEA routes between 7 December 1999 and 14 February 2006 (Article 1(1)), EU-third country routes between 1 May 2004 and 14 February 2006 (Article 1(2)), non-EU EEA-third country routes between 19 May 2005 and 14 February 2006 (Article 1(3)), and EU-Switzerland routes between 1 June 2002 and 14 February 2006 (Article 1(4)).

74      It follows that the operative part of the contested decision is not vitiated either by a contradiction or by a lack of clarity or precision.

75      Since the operative part of the contested decision leaves no room for doubt, it is solely for the sake of completeness that the Court adds that the grounds of the contested decision support that finding. Those grounds thus refer, on the one hand, to an infringement of the competition rules applicable, the geographical scope of which is confined to specific types of route (recitals 1146 and 1187) and, on the other hand, to a ‘worldwide cartel’ (recitals 74, 112, 832 and 1300), a cartel of ‘worldwide nature’ (recital 887) or a cartel ‘implemented globally’ (recital 1046).

76      Recital 1210 of the contested decision does, admittedly, deviate from the rule, in that it refers to ‘the geographic scope of the infringement [which] was worldwide’. However, it must be stated that the context of that isolated reference to a worldwide infringement tends to show that it is a mere clerical error and should read ‘the geographic scope of the cartel [at issue] was worldwide’. That reference is followed by the following sentences:

‘For the purposes of establishing the gravity of the infringement, this means that the cartel [at issue] covered the whole of the EEA and Switzerland. That includes airfreight services … on routes in both directions between airports within the EEA, on routes between airports in countries within the EU and airports outside the EEA, on routes between airports in the EU and airports in Switzerland and on routes between airports in the EEA Contracting Parties not being Member States and airports in third countries.’

77      Consequently, far from being inconsistent with the statement of reasons for the contested decision, the finding of the existence of tariff coordination for the provision of freight services worldwide reflects the position expressed by the Commission, throughout the contested decision, on the geographic scope of the cartel at issue.

78      The present observations must therefore, in any event, be rejected.

B.      The claim for annulment

79      The applicant formally raises three pleas in law in support of its claim for annulment. Those pleas allege:

–        first, breach of the ‘prohibition of arbitrariness’, the principle of equal treatment and the obligation to state reasons;

–        second, a lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services;

–        third, a defective statement of reasons and a manifest error of assessment.

80      The Court deems it appropriate to examine, in the first place, the second plea; in the second place, the plea raised of the Court’s own motion alleging lack of jurisdiction on the part of the Commission in the light of the EC-Switzerland Air Transport Agreement to find and penalise an infringement on routes between airports in the EEA Contracting Parties not being Member States and airports in Switzerland (‘non-EU EEA-Switzerland routes’); and, lastly, the first and third pleas in law in turn.

1.      The second plea in law, alleging lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services

81      The present plea, by which the applicant claims that the Commission did not have jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services, consists, in essence, of three parts. The first of these alleges incorrect interpretation of Council Regulation (EC) No 411/2004 of 26 February 2004 repealing Regulation (EEC) No 3975/87 and amending Regulation (EEC) No 3976/87 and Regulation No 1/2003 as regards air transport between the Community and third countries (OJ 2004 L 68, p. 1), the second alleges misapplication of the implementation test, and the third alleges misapplication of the qualified effects test.

(a)    The first part of the plea, alleging incorrect interpretation of Regulation No 411/2004

82      The applicant submits that the Commission’s interpretation of Regulation No 411/2004 according to which it is clear from that regulation that Article 101 TFEU applies to anticompetitive practices relating to flights on inbound and outbound routes is ‘not at all apparent’. According to the applicant, on the one hand, the reference to ‘air transport between [the European Union] and third countries’ in that regulation does not necessarily include flights on inbound routes. On the other hand, and in any event, the Commission may not be granted powers by regulation, but only by the provisions of the FEU Treaty and public international law.

83      The Commission disputes the applicant’s line of argument.

84      As a preliminary point, it should be recalled that Article 103(1) TFEU confers on the Council of the European Union the power to adopt the appropriate regulations or directives to give effect to the principles set out in Articles 101 and 102 TFEU.

85      In the absence of such legislation, Articles 104 and 105 TFEU apply and impose, in essence, the obligation to apply Articles 101 and 102 TFEU on the authorities of the Member States, and limit the Commission’s powers in this area to investigating, on application by a Member State or on its own initiative, and in conjunction with the competent authorities of the Member States which lend their assistance to it, cases of suspected infringement of the principles laid down by those provisions and, where appropriate, proposing appropriate measures to bring them to an end (judgment of 30 April 1986, Asjes and Others, 209/84 to 213/84, EU:C:1986:188, paragraphs 52 to 54 and 58).

86      On 6 February 1962, the Council adopted, on the basis of Article [103 TFEU], Regulation No 17, First Regulation implementing Articles [101] and [102 TFEU] (OJ, English Special Edition 1959-1962, p. 87).

87      However, Regulation No 141 of the Council of 26 November 1962 exempting transport from the application of Council Regulation No 17 (OJ, English Special Edition 1959-1962, p. 291) removed the whole of the transport sector from the scope of Regulation No 17 (judgment of 11 March 1997, Commission v UIC, C‑264/95 P, EU:C:1997:143, paragraph 44). In those circumstances, in the absence of legislation such as that provided for in Article 103(1) TFEU, Articles 104 and 105 TFEU initially continued to apply to air transport (judgment of 30 April 1986, Asjes and Others, 209/84 to 213/84, EU:C:1986:188, paragraphs 51 and 52).

88      The consequence thereof was a division of powers between the Member States and the Commission for the application of Articles 101 and 102 TFEU as described in paragraph 85 above.

89      It was only in 1987 that the Council adopted a regulation on air transport pursuant to Article 103(1) TFEU. This was 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), which conferred on the Commission the power to apply Articles 101 and 102 TFEU to international air transport between airports within the European Union, to the exclusion of international air transport between the airports of a Member State and those of a third country (judgment of 11 April 1989, Saeed Flugreisen and Silver Line Reisebüro, 66/86, EU:C:1989:140, paragraph 11). The latter remained subject to Articles 104 and 105 TFEU (see, to that effect, judgment of 12 December 2000, Aéroports de Paris v Commission, T‑128/98, EU:T:2000:290, paragraph 55).

90      The entry into force, in 1994, of Protocol 21 to the EEA Agreement on the implementation of competition rules applicable to undertakings (OJ 1994 L 1, p. 181) extended those rules to the implementation of the competition rules laid down in the EEA Agreement, thus precluding the Commission from applying Articles 53 and 54 of the EEA Agreement to international air transport between airports of States party to the EEA which are not members of the European Union and those of a third country.

91      Regulation No 1/2003 and Decision of the EEA Joint Committee No 130/2004 of 24 September 2004 amending Annex XIV (Competition), Protocol 21 (on the implementation of the competition rules applicable to undertakings) and Protocol 23 (on cooperation between surveillance authorities) to the EEA Agreement (OJ 2005 L 64, p. 57), which subsequently incorporated that regulation into the EEA Agreement, initially left that scheme intact. Article 32(c) of that regulation provided that the latter ‘[did not] apply to air transport between [European Union] airports and third countries’.

92      Regulation No 411/2004, Article 1 of which repealed Regulation No 3975/87 and Article 3 of which repealed Article 32(c) of Regulation No 1/2003, conferred on the Commission the power to apply Articles 101 and 102 TFEU to EU-third country routes as from 1 May 2004.

93      Decision of the EEA Joint Committee No 40/2005 of 11 March 2005 amending Annex XIII (Transport) and Protocol 21 (on the implementation of competition rules applicable to undertakings) to the EEA Agreement (OJ 2005 L 198, p. 38) incorporated Regulation No 411/2004 into the EEA Agreement, conferring on the Commission the power to apply Articles 53 and 54 of the EEA Agreement to non-EU EEA-third country routes from 19 May 2005.

94      In the present case, the parties disagree, in essence, on whether the scope of Regulation No 411/2004 and Decision of the EEA Joint Committee No 40/2005 extends to inbound freight services.

95      In that connection, first of all, it should be noted that, since Regulation No 411/2004 repealed Regulation No 3975/87 and removed Article 32(c) of Regulation No 1/2003, there is no longer an express legal basis that would be such as to justify that inbound freight services remain excluded from the rules introduced by Regulation No 1/2003 and thus continue to be subject to the rules laid down in Articles 104 and 105 TFEU.

96      Next, there is nothing in the wording or general scheme of Regulation No 411/2004 to suggest that the legislature intended to maintain the exclusion of inbound freight services from the scope of Regulation No 1/2003. On the contrary, both the title and recitals 1 to 3, 6 and 7 of Regulation No 411/2004 expressly refer to ‘air transport between the [European Union] and third countries’, without any distinction according to whether (i) they are from or to the European Union or (ii) they concern freight or the carriage of passengers.

97      The purpose of Regulation No 411/2004 also argues in favour of including inbound freight services within the scope of that regulation. It is clear from recital 3 of that regulation that the extension of the scope of Regulation No 1/2003 to air transport between the European Union and third countries is based on a twofold finding. First, ‘anti-competitive practices in air transport between the [European Union] and third countries may affect trade between Member States’. Second, ‘mechanisms enshrined in [the latter regulation] are equally appropriate for applying the competition rules to air transport between the [European Union] and third countries’. The applicant has neither demonstrated nor even alleged that inbound freight services are, by their very nature, incapable of affecting trade between Member States or are not appropriate for implementing the mechanisms provided for by that regulation.

98      Lastly, the travaux préparatoires for Regulation No 411/2004 confirm that the EU legislature did not intend to draw a distinction either between inbound and outbound routes or between freight and passenger transport. It is thus clear from point 10 of the explanatory memorandum of the proposal for the Council regulation repealing Regulation No 3975/87 and amending Regulation (EEC) No 3976/87 and Regulation No 1/2003, in connection with air transport between [the European Union] and third countries (COM/2003/0091 final – CNS 2003/0038), that, ‘the extension of the competition enforcement rules to include also international air transport to and from the [European Union] would afford [carriers] the clear benefit of a common EU-wide enforcement system as to the legality of their agreement under the [EU] competition rules’. In the same paragraph, reference is made to the desire to ensure ‘the airline industry’s need for a level playing field for all air transport activities’.

99      It follows that, contrary to the applicant’s claim, inbound freight services fall within the scope of Regulation No 411/2004 and Decision of the EEA Joint Committee No 40/2005. The Commission did not therefore err in finding, in recital 1041 of the contested decision, that Article 101 TFEU was applicable to air transport between the European Union and third countries ‘in both directions’; the same considerations apply to Article 53 of the EEA Agreement with regard to non-EU EEA-third country routes.

100    Accordingly, the first part of the present plea must be rejected.

(b)    The second and third parts, alleging, respectively, an error in the application of the implementation test and an error in the application of the qualified effects test

101    It should be observed, as the applicant does, that, as regards conduct adopted outside the territory of the EEA, the mere existence of directives or regulations covered by Article 103(1) TFEU is not sufficient to establish the Commission’s jurisdiction under public international law to find and penalise an infringement of Article 101 TFEU or of Article 53 of the EEA Agreement.

102    The Commission must also be able to establish that jurisdiction on the basis of the implementation test or the qualified effects test (see, to that effect, judgments of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 40 to 47, and of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraphs 95 to 97).

103    Those tests are alternative and not cumulative (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 98; see also, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 62 to 64).

104    In recitals 1043 to 1046 of the contested decision, the Commission relied on both the implementation test and the qualified effects test in order to establish its jurisdiction under public international law to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes.

105    Since the applicant alleges an error in the application of each of those two tests, the Court deems it appropriate to examine, first of all, whether the Commission was entitled to avail itself of the qualified effects test. In accordance with the case-law cited in paragraph 103 above, it is only in the negative that it will be necessary to ascertain whether the Commission was entitled to rely on the implementation test.

106    The applicant claims that the contested decision is based on the incorrect assumption that the single and continuous infringement, in so far as it concerned inbound freight services, had a substantial, immediate and foreseeable effect on competition in the EEA.

107    According to the applicant, the Commission erred in recital 1045 of the contested decision by concluding that the anticompetitive practices relating to inbound routes had, ‘by their nature’, had an effect on competition in the European Union or the EEA, since the increased costs of transport that resulted from those practices had had an effect on the price of the transported goods. The applicant argues, on the one hand, that the Commission, on which the burden of proof rests, was merely making an assumption for which there was no evidence and which, in any event, was too general.

108    The judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632) does not call that conclusion into question. The applicant submits that it is in fact clear from that judgment that, where the Commission claims that its jurisdiction is based on certain effects, those effects must be ‘probable’. However, in recital 917 of the contested decision, the Commission stated that it was not making any assessment of the anticompetitive effects of the anticompetitive practices at issue.

109    On the other hand, the applicant submits that the Commission disregarded three factors which were capable of calling its conclusions into question. First, it cannot be maintained that an increase in surcharges leads to a quasi-automatic increase in the price of the goods transported, nor, a fortiori, that such an increase is a ‘natural’ consequence. Since the infringement related solely to the FSC and the SSC, freight forwarders were still able to exercise buying power over the other elements of the total price. It is apparent from an economic study that there is a substantial negative correlation between the level of surcharges and the level of the other elements of the total price, such that, if surcharges increase, rates decrease.

110    Second, it is not at all a given (‘by its nature’) that any impact on the overall price of cargo transport caused by the infringement on surcharges was actually carried over to the price that shippers were charged. Given the characteristics of the market in question, that would have depended entirely on freight forwarders, which apparently deviate from the price elements of the applicant and include higher surcharges than those charged by the applicant. It is apparent, moreover, from 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 – Transit) (‘the Transit Decision’), that at least part of the prices charged by freight forwarders to shippers during the period in question was itself the result of infringements of the competition rules, with the result that the causal link between the applicant’s conduct and the effects of that conduct is uncertain. The applicant submits that this also suggests that freight forwarders were able to exercise buying power over the applicant through other elements of the price.

111    Third, it is not at all obvious that any effects of the infringement within the EEA were substantial. First, according to the applicant, there is a substantial negative correlation between the level of the surcharges and the level of other elements of the total price. The applicant claims, second, that the total value of the surcharges which it applied during the relevant period was, on average, approximately 20% of the total price that it charged freight forwarders, and was part of a much larger package of services provided by freight forwarders.

112    In its reply, the applicant also observes that the Commission’s argument relates to the functioning of a market other than that covered by the contested decision and on which the applicant markets its services to its customers.

113    Again at the reply stage, the applicant adds that the Court cannot, without infringing its rights of defence, accept that the Commission had jurisdiction over flights on inbound routes in the light of the ‘effects theory’ on the basis of the observations set out in the defence. According to the applicant, the latter were not part of the Statement of Objections. The Transit Decision had not yet been issued at the time of the administrative procedure.

114    At the hearing, the applicant also claimed that the Commission was not entitled to conclude that the qualified effects test could apply in the light of the conduct at issue taken as a whole rather than in the light of the coordination relating to inbound freight services taken in isolation. The applicant argues that the case giving rise to the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632), on which the Commission’s line of argument is based, is different from the present case. Thus that case concerned a foreclosure strategy, in which the customers of the dominant undertaking were ‘vectors’. In addition, the applicant maintains that the Commission’s decision-making practice does not support the finding that there is a worldwide freight market, and disputes the ‘overall logic of the worldwide infringement’. Furthermore, in the applicant’s submission, there is no evidence to show that the competitive structures in the EEA market were modified as a result of the conduct of freight forwarders outside the EEA.

115    The Commission disputes the applicant’s arguments.

116    As a preliminary point, it should be observed that the applicant is not entitled to criticise the Commission for relying, in its defence, on information which was not included in the Statement of Objections. The only element of that nature to which the applicant refers is the Commission’s reference to the Transit Decision in that defence, which the applicant itself relied on in the application, and which the Commission merely quoted in its pleadings in order to defend itself.

117    Next, in the contested decision, the Commission relied, in essence, on three separate grounds in order to find that the qualified effects test was satisfied in the present case.

118    The first two grounds are set out in recital 1045 of the contested decision. As the Commission confirmed in reply to the written and oral questions put by the Court, those grounds concern the effects of coordination in relation to inbound freight services taken in isolation. The first ground is that the ‘increased costs of air transport to the EEA, and consequently the higher prices of imported goods [were], by their very nature, liable to have effects on consumers in the EEA’. The second ground concerns the effects of coordination in relation to inbound freight services ‘also on the provision of [freight] services by other carriers within the EEA, between the different hub airports used by carriers from third countries in the EEA and airports of destination of those shipments in the EEA to which the carrier from the third country does not fly’.

119    The third ground is set out in recital 1046 of the contested decision and concerns, as is apparent from the Commission’s answers to the written and oral questions put by the Court, the effects of the single and continuous infringement taken as a whole.

120    The Court considers it appropriate to examine both the effects of coordination in relation to inbound freight services taken in isolation and the effects of the single and continuous infringement taken as a whole, starting with the former.

(1)    The effects of coordination in relation to inbound freight services taken in isolation

121    It is appropriate to examine, first of all, the merits of the first of the grounds on which the Commission’s conclusion that the qualified effects test is satisfied in the present case (‘the effect at issue’) is based.

122    In that connection, it should be recalled that, as is apparent from recital 1042 of the contested decision, the qualified effects test allows the application of the EU and EEA competition rules to be justified under public international law when it is foreseeable that the conduct at issue will have an immediate and substantial effect in the internal market or within the EEA (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 49; see also, to that effect, judgment of 25 March 1999, Gencor v Commission, T‑102/96, EU:T:1999:65, paragraph 90).

123    In the present case, the applicant disputes both the relevance of the effect at issue (see paragraphs 124 to 141 below), and its foreseeability (see paragraphs 143 to 163 below), its substantiality (see paragraphs 164 to 174 below) and its immediacy (see paragraphs 175 to 183 below).

(i)    The relevance of the effect at issue

124    It is clear from the case-law that the fact that an undertaking participating in an agreement or a concerted practice is situated in a third country does not prevent the application of Article 101 TFEU and Article 53 of the EEA Agreement, if that agreement or practice is operative, respectively, in the internal market or within the EEA (see, to that effect, judgment of 25 November 1971, Béguelin Import, 22/71, EU:C:1971:113, paragraph 11).

125    The purpose of applying the qualified effects test is precisely to prevent conduct which, while not adopted within the EEA, has anticompetitive effects liable to have an impact in the internal market and within the EEA (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 45).

126    Contrary to what the applicant claims, that test does not require it to be established that the conduct at issue produced effects which actually materialised in the internal market or within the EEA. On the contrary, according to the case-law and as the applicant acknowledges in its reply, it is sufficient to take account of the probable effects of that conduct on competition (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 51).

127    It is for the Commission to ensure the protection of competition in the internal market or within the EEA against threats to the effective functioning thereof.

128    Where conduct has been found by the Commission, as in the present case, to reveal a degree of harmfulness to competition in the internal market or within the EEA such that it could be classified as a restriction of competition by ‘object’ within the meaning of Article 101 TFEU and Article 53 of the EEA Agreement, the application of the qualified effects test also cannot require the demonstration of the actual effects which classification of conduct as a restriction of competition by ‘effect’ within the meaning of those provisions presupposes.

129    In that connection, it should be recalled, as the applicant submits, that the qualified effects test is enshrined in the wording of Article 101 TFEU and Article 53 of the EEA Agreement, which are intended to prevent agreements and practices which limit competition in the internal market and within the EEA, respectively. Those provisions prohibit agreements and practices of undertakings which have as their object or effect the prevention, restriction or distortion of competition ‘within the internal market’ and ‘within the territory covered by [the EEA Agreement]’, respectively (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 42).

130    It is settled case-law that the anticompetitive object and effect are not cumulative conditions, but alternative conditions for assessing whether conduct falls within the prohibitions laid down in Article 101 TFEU and Article 53 of the EEA Agreement (see, to that effect, judgment of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 28 and the case-law cited).

131    It follows that, as the Commission observed in recital 917 of the contested decision, there is no need to take account of the actual effects of the conduct at issue once its anticompetitive object has been established (see, to that effect, judgments of 13 July 1966, Consten and Grundig v Commission, 56/64 and 58/64, EU:C:1966:41, p. 342, and of 6 October 2009, GlaxoSmithKline Services and Others v Commission and Others, C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, EU:C:2009:610, paragraph 55).

132    In those circumstances, interpreting the qualified effects test, as the applicant appears to advocate, as requiring proof of the actual effects of the conduct at issue even where there is a restriction of competition ‘by object’, would amount to making the Commission’s jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement subject to a condition which has no basis in the wording of those provisions.

133    The applicant cannot therefore validly claim that the Commission erred in finding that the qualified effects test was satisfied, even though it stated, in recitals 917, 1190 and 1277 of the contested decision, that it was not required to make an assessment of the anticompetitive effects of the conduct at issue in the light of the anticompetitive object thereof. Nor can the applicant deduce from those recitals that the Commission did not carry out any analysis of the effects produced by that conduct in the internal market or within the EEA for the purposes of applying that test.

134    In recital 1045 of the contested decision, the Commission considered, in essence, that the single and continuous infringement, in so far as it related to inbound routes, was liable to increase the amount of the surcharges and, consequently, the total price of inbound freight services and that freight forwarders had passed on that additional cost to shippers based in the EEA, who had had to pay a higher price for the goods they had purchased than would have been charged in the absence of that infringement.

135    None of the applicant’s arguments permits the inference that the effect at issue was not among the effects produced by the conduct at issue which the Commission is entitled to take into account for the purposes of applying the qualified effects test.

136    In the first place, contrary to what the applicant appears to claim, there is nothing in the wording, scheme or purpose of Article 101 TFEU to suggest that the effects taken into account for the purposes of applying the qualified effects test must occur on the same market as that concerned by the infringement at issue rather than on a downstream market, as in the present case (see, to that effect, judgment of 9 September 2015, Toshiba v Commission, T‑104/13, EU:T:2015:610, paragraphs 159 and 161).

137    In the second place, the applicant is incorrect in claiming that the conduct at issue, in so far as it related to inbound routes, was not capable of restricting competition in the EEA, on the ground that that conduct took place only in third countries where the freight forwarders who sourced inbound freight services from the incriminated carriers are established.

138    In that connection, it should be noted that the qualified effects test must be applied in the light of the economic and legal context of the conduct at issue (see, to that effect, judgment of 25 November 1971, Béguelin Import, 22/71, EU:C:1971:113, paragraph 13).

139    In the present case, it is apparent from recitals 14, 17 and 70 of the contested decision and from the parties’ replies to the Court’s measures of organisation of procedure that the carriers sell their freight services exclusively or almost exclusively to freight forwarders. As regards inbound freight services, almost all those sales take place at the point of origin of the routes in question, outside the EEA, where those freight forwarders are established. It is apparent from the applicant’s replies to the Court’s measures of organisation of procedure that, between 1 May 2004 and 14 February 2006, it made only a negligible proportion of its sales of inbound freight services to customers based in the EEA.

140    It must, however, be observed that, although freight forwarders purchase those services, they do so in particular as intermediaries, in order to consolidate them into a package of services, the purpose of which is, by definition, to organise the integrated transport of goods to the territory of the EEA on behalf of shippers. As is apparent from recital 70 of the contested decision, the latter may in particular be the purchasers or owners of the goods transported. It is therefore at the very least likely that they are established in the EEA.

141    It follows that, provided that the freight forwarders pass any additional costs resulting from the cartel at issue on to the price of their service packages, it is in particular on competition that occurs between freight forwarders in order to attract those shippers as customers that the single and continuous infringement, in so far as it concerns inbound routes, is liable to have an impact and, consequently, it is in the internal market or within the EEA that the effect at issue is liable to materialise.

142    Consequently, the additional cost which shippers might have had to pay and the higher prices of the goods imported into the EEA which may have resulted are among the effects produced by the conduct at issue on which the Commission was entitled to rely for the purposes of applying the qualified effects test.

143    In accordance with the case-law cited in paragraph 122 above, the question is therefore whether that effect has the required foreseeability, substantiality and immediacy.

(ii) The foreseeability of the effect at issue

144    The requirement of foreseeability seeks to ensure legal certainty by guaranteeing that the undertakings concerned may not be penalised on account of effects which might indeed result from their conduct, but which they could not reasonably expect to occur (see, to that effect, Opinion of Advocate General Kokott in Otis Gesellschaft and Others, C‑435/18, EU:C:2019:651, point 83).

145    Effects the occurrence of which the members of the cartel at issue ought reasonably to take into consideration on the basis of practical experience thus satisfy the requirement of foreseeability, unlike effects which result from an entirely extraordinary train of events and, therefore, ensue via an atypical causal chain (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C‑557/12, EU:C:2014:45, point 42).

146    It is apparent from recitals 846, 909, 1199 and 1208 of the contested decision that what is at issue in the present case is collusive horizontal price-fixing behaviour, experience of which shows that it leads inter alia to price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers (see, to that effect, judgment of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 51).

147    It is also apparent from recitals 846, 909, 1199 and 1208 of the contested decision that the conduct related to the FSC, the SSC and the refusal to pay commission.

148    In the present case, it was therefore foreseeable for the incriminated carriers that the horizontal fixing of the FSC and the SSC would lead to an increase in the level of those charges. As is apparent from recitals 874, 879 and 899 of the contested decision, the refusal to pay commission was liable to reinforce such an increase. It amounted to a concerted refusal to grant freight forwarders discounts on surcharges, by which the incriminated carriers ‘ensured that pricing uncertainty, which could have arisen from competition on commission payments [in the context of negotiations with freight forwarders], remained suppressed’ (recital 874 of that decision) and thus aimed to eliminate competition in respect of surcharges (recital 879 of that decision).

149    It is apparent from recital 17 of the contested decision that the price of freight services is made up of rates and surcharges, including the FSC and SSC. Unless it were considered that an increase in the FSC and the SSC would, as a result of a sufficiently probable ‘waterbed effect’, be offset by a corresponding reduction in rates and other surcharges, such an increase was, in principle, liable to lead to an increase in the total price of inbound freight services. The applicant has failed to demonstrate that a ‘waterbed effect’ was so probable as to render the effect at issue unforeseeable.

150    In the present case, the applicant admittedly infers from an economic report given in the context of the actions for damages that there is ‘a substantive negative correlation between the level of surcharges, and the level of “rates”, to the effect that if surcharges went up, the rates went down’.

151    In so far as the applicant thus seeks to maintain that the ‘waterbed’ effect was sufficiently probable as to render the effect at issue unforeseeable, it should be noted that the economic report on which the applicant relies concludes, on the basis of assumptions as to the operation of the freight sector, that it was theoretically ‘likely’ that the ‘waterbed effect’ would materialise in the present case.

152    The assumptions on which the economic report in question is based include, in particular, the assumption that the rates were sufficiently ‘flexible’ to offset any supra-competitive increase in surcharges by a corresponding reduction. According to that report, there are three types of rates. Rates of the first type are negotiated on a specific basis and determined on a daily basis. They may therefore be subject to immediate adjustments. The second and third types of rates, which represented a sizeable majority of the turnover from the sale of freight services during the infringement period, are, respectively, those based on prices published twice a year and those negotiated bilaterally for a period of one to 12 months. That report acknowledges that those types of rates cannot be subject to immediate adjustments, but concludes that the response time thereof remains sufficiently low to give rise to the ‘waterbed effect’. However, that report does not contain, beyond vague and general assertions, any specific data capable of substantiating that conclusion.

153    In those circumstances, the members of the cartel at issue could reasonably have foreseen that the effect of the single and continuous infringement, in so far as it concerned inbound freight services, would be an increase in the price of freight services on inbound routes.

154    The question is therefore whether it was foreseeable for the incriminated carriers that freight forwarders would pass on such additional costs to their own customers, namely shippers.

155    In that connection, it should be observed at the outset that the applicant is not justified in criticising the Commission for having found that such an effect was ‘quasi automatic’ or akin to a ‘“natural” consequence of the [single and continuous] infringement’. In recital 1045 of the contested decision, the Commission merely observed that the conduct at issue was ‘liable’ to have the requisite effects in view of the ‘increased costs of air transport to the EEA and consequently higher prices of imported goods’. The reference to the ‘nature’ of the conduct at issue, which is set out in the same recital, is intended solely to describe the capacity of the increased cost of imported goods to affect ‘consumers in the EEA’.

156    Furthermore, it is apparent from recitals 14 and 70 of the contested decision that the price of freight services is an input for freight forwarders. That is a variable cost, the increase in which has, in principle, the effect of increasing the marginal cost in the light of which freight forwarders set their own prices.

157    The applicant does not put forward any evidence demonstrating that the circumstances of the present case were not conducive to passing on the additional costs resulting from the single and continuous infringement on inbound routes to shippers downstream.

158    In those circumstances, it was reasonably foreseeable for the incriminated carriers that freight forwarders would pass on such additional costs to shippers through an increase in the price of freight-forwarding services.

159    As is apparent from recitals 70 and 1031 of the contested decision, the cost of goods the integrated transportation of which is generally organised by freight forwarders on behalf of shippers incorporates the price of freight-forwarding services, and in particular the cost of freight services which are a constituent element thereof.

160    In the light of the foregoing, it was therefore foreseeable for the incriminated carriers that the single and continuous infringement would, in so far as it related to inbound routes, have the effect of increasing the price of imported goods.

161    For the reasons set out in paragraph 139 above, it was equally foreseeable for the incriminated carriers that, as is apparent from recital 1045 of the contested decision, that effect would occur in the EEA.

162    Since the effect at issue was part of the normal course of events and economic rationale, it was not, contrary to what the applicant maintained at the hearing, in any way necessary for the applicant to have precise knowledge of the functioning of the downstream markets in order to be able to foresee it.

163    It must therefore be concluded that the Commission has established to the requisite standard that the effect at issue was foreseeable.

(iii) The substantiality of the effect at issue

164    The assessment of whether effects produced by the conduct at issue are substantial must be carried out in the light of all the relevant circumstances of the case. Those circumstances include, inter alia, the duration, nature and scope of the infringement. Other circumstances, such as the size of the undertakings which participated in that conduct, may also be relevant (see, to that effect, judgments of 9 September 2015, Toshiba v Commission, T‑104/13, EU:T:2015:610, paragraph 159, and of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 112).

165    Where the effect under consideration relates to an increase in the price of a finished product or service derived from or containing the cartelised service, the proportion of the price of the finished product or service represented by the cartelised service may also be taken into account.

166    In the present case, in the light of all the relevant circumstances, it must be held that the effect at issue, relating to the increase in the price of goods imported into the EEA, is substantial.

167    In the first place, it is apparent from recital 1146 of the contested decision that the duration of the single and continuous infringement amounts to 21 months in so far as it concerned EU-third country routes, and 8 months in so far as it concerned the non-EU EEA-third country routes. It is apparent from recitals 1215 and 1217 of that decision that this is also the duration of all the incriminated carriers’ participation, with the exception of Lufthansa Cargo and Swiss.

168    In the second place, as regards the scope of the infringement, it is apparent from recital 889 of the contested decision that the FSC and the SSC were ‘measures of general application that [were] not route specific’ and ‘were intended to be applied on all routes, on a worldwide basis, including routes to … the EEA’.

169    In the third place, as regards the nature of the infringement, it is apparent from recital 1030 of the contested decision that the object of the single and continuous infringement was to restrict competition between the incriminated carriers, inter alia on EEA-third country routes. In recital 1208 of that decision, the Commission concluded that the ‘fixing of various elements of the price, including particular surcharges, constitute[d] one of the most harmful restrictions of competition’ and therefore found that the single and continuous infringement merited the application of a gravity factor ‘at the higher end of the scale’ provided for in the 2006 Guidelines.

170    For the sake of completeness, as regards the proportion of the price of the cartelised service in the product or service which is derived from it or contains it, it should be noted that, contrary to what the applicant submits, during the infringement period the surcharges represented a significant proportion of the total price of freight services.

171    It is thus apparent from a letter of 8 July 2005 from the Hong Kong Association of Freight Forwarding & Logistics to the Chairman of the Cargo Sub-Committee of the Hong Kong Board of Airline Representatives, that the surcharges represent a ‘very significant part’ of the total price of the air waybills which freight forwarders were required to pay. Similarly, in the application and the annexes thereto, it is stated that the surcharges represented 22% of the price of the applicant’s freight services during the 2004/2005 financial year.

172    As is apparent from recital 1031 of the contested decision, the price of freight services was itself a ‘significant cost element of the goods transported that has an impact on their sale’.

173    Again for the sake of completeness, as regards the size of the undertakings that participated in the conduct at issue, it is apparent from recital 1209 of the contested decision that the combined market share of the incriminated carriers on the ‘worldwide market’ was 34% in 2005 and was ‘at least as high for freight services provided on EEA-third country routes’, which included both outbound and inbound routes.

174    It must therefore be concluded that the Commission has established to the requisite standard that the effect at issue was substantial.

(iv) The immediacy of the effect at issue

175    The requirement of immediacy of the effects produced by the conduct at issue relates to the causal link between the conduct and the effect under consideration. The purpose of that requirement is to ensure that the Commission cannot, in order to justify its jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement, rely on all the possible effects, however remote, for which that conduct might have been the cause in the sense of a conditio sine qua non (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C‑557/12, EU:C:2014:45, points 33 and 34).

176    The direct causal link must not, however, be regarded as being the same as a single causal link, which would mean always finding as a matter of course that the chain of causality is broken where the action of a third party was a contributory cause of the effects at issue (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C‑557/12, EU:C:2014:45, points 36 and 37).

177    In the present case, the intervention of freight forwarders in respect of which it was foreseeable that, with complete independence, they would pass on to shippers the additional costs that they had had to pay is indeed capable of having contributed to the occurrence of the effect at issue. However, that intervention was not, in itself, such as to break the causal chain between the conduct at issue and that effect and thus deprive it of its immediacy.

178    On the contrary, where it is not wrongful, but objectively results from the cartel at issue, in accordance with the normal functioning of the market, such an intervention does not break the causal chain (see, to that effect, judgment of 14 December 2005, CD Cartondruck v Council and Commission, T‑320/00, not published, EU:T:2005:452, paragraphs 172 to 182), but continues it (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C‑557/12, EU:C:2014:45, point 37).

179    In the present case, the applicant submits, admittedly, that the anticompetitive practices for which the Commission penalised the freight forwarders place ‘great uncertainty’ on the causal link between the conduct at issue and the effect at issue. According to the applicant, there are ‘concrete indications that at least some of the prices charged by freight forwarders to shippers in the relevant period were themselves the result of [those practices]’. It must, however, be observed that the applicant has neither established nor even alleged that, in the context of those practices, the freight forwarders unlawfully coordinated in order to pass on to the shippers the additional cost that they had to pay. Nor does the applicant demonstrate that those practices were such as to prevent the freight forwarders from passing that additional cost on to the shippers.

180    The applicant’s argument that the level of the additional costs which freight forwarders charged shippers exceeded that of the surcharges which they paid to the incriminated carriers does not call that conclusion into question. First, the applicant has failed to substantiate that argument, merely referring, without elaborating further, to the evidence that was provided to it in the context of the actions for damages. Second, it has failed to explain why freight forwarders could not have passed on both the additional costs resulting from the single and continuous infringement to shippers and invoiced the latter for surcharges of a total amount greater than that of the surcharges which they themselves had to pay to the incriminated carriers.

181    It cannot therefore be considered that the foreseeable passing on of the additional cost to shippers located in the EEA is the result of the anticompetitive practices in respect of which the Commission penalised the freight forwarders and is, consequently, wrongful or extraneous to the normal functioning of the market.

182    As regards the ‘buying power’ that the freight forwarders allegedly exercised, the applicant has failed to adduce evidence of this or even to explain how it was such as to break the causal chain between the conduct at issue and the occurrence of the effect at issue.

183    It follows that the effect at issue has the required immediacy.

184    It is clear from the foregoing that the effect at issue is foreseeable, substantial and immediate and that the first ground on which the Commission relied in order to conclude that the qualified effects test was satisfied is well founded. It must therefore be held that the Commission could, without making any error, find that the test was satisfied as regards coordination in relation to inbound freight services taken in isolation, without there being any need to examine the merits of the second ground relied on in recital 1045 of the contested decision.

(2)    The effects of the single and continuous infringement taken as a whole

185    It should be noted at the outset that there is nothing to prevent an assessment of whether the Commission has the necessary jurisdiction to apply, in each case, EU competition law in the light of the conduct of the undertaking or undertakings in question, viewed as a whole (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 50).

186    According to the case-law, Article 101 TFEU may be applied to practices and agreements that serve the same anticompetitive objective, provided that it is foreseeable that, taken together, they will have immediate and substantial effects in the internal market. Undertakings cannot be allowed to avoid the application of the EU competition rules by combining a number of types of conduct that pursue the same objective, each of which, taken on its own, is not capable of producing an immediate and substantial effect in that market, but which, taken together, are capable of producing such an effect (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 106).

187    Contrary to what the applicant maintained at the hearing, it is in no way necessary for that objective to relate specifically to a ‘foreclosure’ or ‘squeezing out’ strategy or to rely on the intentional participation of the customers of the participants in the infringement at issue. The Court has held that the Commission was entitled to apply the qualified effects test in the light of the conduct at issue taken as a whole in a case concerning market sharing between competitors (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 108).

188    The Commission may thus base its jurisdiction to apply Article 101 TFEU to a single and continuous infringement as found in the decision at issue on the foreseeable, immediate and substantial effects of that infringement in the internal market (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 105).

189    Those considerations apply, mutatis mutandis, in respect of Article 53 of the EEA Agreement.

190    In recital 869 of the contested decision, the Commission characterised the conduct at issue as a single and continuous infringement, including in so far as it concerned inbound freight services. The applicant does not dispute that characterisation generally, or the finding that there was a single anticompetitive objective of distorting competition within the EEA on which that characterisation is based.

191    In recital 1046 of the contested decision, the Commission, as is apparent from its answers to the written and oral questions put by the Court, examined the effects of that infringement taken as a whole. It thus found, inter alia, that its investigation had revealed ‘a cartel [that] was implemented globally’, whose ‘arrangements concerning inbound routes formed an integral part of the single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement’. It added that the ‘uniform application of the surcharges on a world wide scale was a key element of the cartel [at issue]’. As the Commission stated in reply to the written questions put by the Court, the uniform application of the surcharges forms part of an overall strategy designed to neutralise the risk that the freight forwarders could circumvent the effects of that cartel by opting for indirect routes which would not be subject to coordinated surcharges in order to transport goods from the point of origin to the point of destination. The reason for that is not, as the applicant suggested at the hearing, the hypothetical worldwide dimension of the freight market but rather that, as is apparent from recital 72 of the contested decision, ‘there is not the same time sensitivity associated with [freight] transport as there is with passenger transport’, so that freight ‘may be routed with a higher number of stopovers’ and that indirect routes can, therefore, be substituted for direct routes.

192    The applicant did, admittedly, dispute the existence of such a strategy at the hearing. However, it merely made assertions.

193    Under those circumstances, the Commission is correct in contending that prohibiting it from applying the qualified effects test to the conduct at issue taken as a whole would lead to an artificial fragmentation of comprehensive anticompetitive conduct, capable of affecting the market structure within the EEA, into a collection of separate forms of conduct which might escape the European Union’s jurisdiction (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 57).

194    It must therefore be held that the Commission was entitled, in recital 1046 of the contested decision, to examine the effects of the single and continuous infringement taken as a whole.

195    As regards agreements and practices which, first, had the object of restricting competition at least in the European Union, the EEA and Switzerland (recital 903 of that decision), second, brought together carriers with significant market shares (recital 1209 of that decision) and, third, a significant part of which related to intra-EEA routes for a period of more than six years (recital 1146 of that decision), there can be little doubt that it was foreseeable that, taken as a whole, the single and continuous infringement would produce immediate and substantial effects in the internal market or within the EEA.

196    It follows that the Commission was also entitled to find, in recital 1046 of the contested decision, that the qualified effects test was satisfied as regards the single and continuous infringement taken as a whole.

197    Since the Commission has thus established to the requisite legal standard that it was foreseeable that the conduct at issue would produce a substantial and immediate effect in the EEA, the present complaint must be rejected, as, consequently, must the present plea in its entirety, without it being necessary to examine the second part thereof, alleging errors in the application of the implementation test.

2.      The plea, raised of the Court’s own motion, alleging lack of jurisdiction on the part of the Commission, in the light of the EC-Switzerland Air Transport Agreement, to find and penalise an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes

198    As a preliminary point, it should be recalled that it is for the Courts of the European Union to examine of their own motion the plea, which is a matter of public policy, alleging a lack of jurisdiction on the part of the author of the contested measure (see, to that effect, judgment of 13 July 2000, Salzgitter v Commission, C‑210/98 P, EU:C:2000:397, paragraph 56).

199    However, according to settled case-law, the Courts of the European Union cannot, as a general rule, base their decisions on a plea raised of their own motion – even one involving a matter of public policy – without first having invited the parties to submit their observations in that regard (see judgment of 17 December 2009, Review of M v EMEA, C‑197/09 RX-II, EU:C:2009:804, paragraph 57 and the case-law cited).

200    In the present case, the Court takes the view that it has a duty to examine of its own motion whether the Commission exceeded its own jurisdiction on the basis of the EC-Switzerland Air Transport Agreement as regards non-EU EEA-Switzerland routes by finding, in Article 1(3) of the contested decision, that there had been an infringement of Article 53 of the EEA Agreement on non-EU EEA-third country routes, and invited the parties to submit their observations in that regard in the context of the measures of organisation of procedure.

201    The applicant claims that the reference to ‘third countries’ in Article 1(3) of the contested decision includes the Swiss Confederation. The latter is, in the applicant’s view, a third country within the meaning of the EEA Agreement, the infringement of which is established in that article. The applicant infers from this that the Commission, in that article, found an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes, and thus exceeded the limits of its jurisdiction under Article 11(2) of the EC-Switzerland Air Transport Agreement.

202    The Commission replies that the reference in Article 1(3) of the contested decision to ‘routes between airports in countries that are Contracting Parties of the EEA Agreement but not Member States and airports in third countries’ cannot be interpreted as including non-EU EEA-Switzerland routes. In its view, the concept of ‘third country’ within the meaning of that article excludes the Swiss Confederation.

203    The Commission adds that, if it were to be held that it found the applicant liable for an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes in Article 1(3) of the contested decision, it would have exceeded the limits which Article 11(2) of the EC-Switzerland Air Transport Agreement imposes on its jurisdiction.

204    It is necessary to determine whether, as the applicant maintains, the Commission found an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes in Article 1(3) of the contested decision and, if necessary, whether it thus exceeded the limits of its jurisdiction under the EC-Switzerland Air Transport Agreement.

205    In that regard, it should be recalled that, as has been observed in paragraph 72 above, it is the operative part, and not the statement of reasons, which is important in determining the scope and nature of the infringements penalised.

206    In Article 1(3) of the contested decision, the Commission found that the applicant had ‘infringed Article 53 of the EEA Agreement as regards routes between airports in countries that are Contracting Parties of the EEA Agreement but not Member States and airports in third countries’ from 19 May 2005 to 14 February 2006. The Commission neither expressly included non-EU EEA-Switzerland routes amongst those routes, nor expressly excluded them.

207    It is therefore necessary to ascertain whether the Swiss Confederation comes under the ‘third countries’ referred to in Article 1(3) of the contested decision.

208    In that regard, it should be noted that Article 1(3) of the contested decision distinguishes between ‘countries that are Contracting Parties of the EEA Agreement but not Member States’ and third countries. It is true that, as the applicant observes, the Swiss Confederation is not party to the EEA Agreement and therefore numbers amongst the third countries to that agreement.

209    It must however be borne in mind that, given the requirements of unity and consistency in the EU legal order, the same words used in the same act must be presumed to have the same meaning.

210    In Article 1(2) of the contested decision, the Commission found an infringement of Article 101 TFEU as regards ‘routes between airports within the European Union and airports outside the EEA’. That concept does not include airports in Switzerland, even though the Swiss Confederation is not party to the EEA Agreement and its airports should therefore formally be regarded as being ‘outside the EEA’ or, in other words, in a third country to that agreement. Those airports are the subject of Article 1(4) of the contested decision, which finds an infringement of Article 8 of the EC-Switzerland Air Transport Agreement, as regards ‘routes between airports within the European Union and airports in Switzerland’.

211    In accordance with the principle recalled in paragraph 209 above, it must therefore be presumed that the phrase ‘airports in third countries’ used in Article 1(3) of the contested decision has the same meaning as the terms ‘airports outside the EEA’ used in Article 1(2) and, therefore, excludes airports in Switzerland.

212    In the absence of the slightest indication in the operative part of the contested decision that the Commission intended to give a different meaning to the concept of ‘third countries’ referred to in Article 1(3) of the contested decision, it must be concluded that the concept of ‘third countries’ referred to in Article 1(3) thereof excludes the Swiss Confederation.

213    It therefore cannot be held that the Commission found the applicant liable for an infringement of Article 53 of the EEA Agreement as regards non-EU EEA-Switzerland routes in Article 1(3) of the contested decision.

214    Since the operative part of the contested decision leaves no room for doubt, it is thus solely for the sake of completeness that the Court adds that the grounds of that decision do not contradict that finding.

215    In recital 1146 of the contested decision, the Commission stated that the ‘anti-competitive arrangements’ which it had described infringed Article 101 TFEU from 1 May 2004 to 14 February 2006 ‘as regards air transport between airports within the [European Union] and airports outside the EEA’. In the relevant footnote (1514), the Commission stated the following: ‘For the purpose of this Decision, “airports outside the EEA” include airports in countries other than [the Swiss Confederation] and in Contracting Parties to the EEA Agreement’.

216    Admittedly, where it described the scope of the infringement of Article 53 of the EEA Agreement in recital 1146 of the contested decision, the Commission did not refer to the concept of ‘airports outside the EEA’ but rather to ‘airports in third countries’. It cannot, however, be inferred therefrom that the Commission intended to give a different meaning to the concept of ‘airports outside the EEA’ for the purposes of applying Article 101 TFEU and to that of ‘airports in third countries’ for the purposes of applying Article 53 of the EEA Agreement. On the contrary, the Commission used those two phrases interchangeably in the contested decision. Thus, in recital 824 of the contested decision, the Commission stated that it ‘[would] not apply Article 101 TFEU to anti-competitive agreements and practices concerning air transport between [European Union] airports and airports in third countries that took place before 1 May 2004’. Similarly, in recital 1222 of that decision, as regards the end of SAS Consortium’s participation in the single and continuous infringement, the Commission referred to its jurisdiction on the basis of those provisions ‘on routes between the [European Union] and third countries and routes between Iceland, Norway and Liechtenstein and countries outside the EEA’.

217    The grounds of the contested decision therefore confirm that the concepts of ‘airports in third countries’ and ‘airports outside the EEA’ have the same meaning. In accordance with the definition set out in footnote 1514, it must therefore be held that both concepts exclude airports in Switzerland.

218    Contrary to the applicant’s arguments, recitals 1194 and 1241 of the contested decision do not advocate another outcome. Admittedly, the Commission referred, in recital 1194 of that decision, to ‘routes between the EEA and third countries, except routes between the [European Union] and Switzerland’. Similarly, in recital 1241 of that decision, in the context of the ‘determination of the value of sales on third country routes’, the Commission reduced by 50% the basic amount for ‘EEA-third country routes, except routes between the [European Union] and Switzerland where [it] is acting under the [EC-Switzerland Air Transport Agreement]’. It could be considered, as the applicant observes in essence, that if the Commission took care to insert in those recitals the words ‘with the exception of routes between the [European Union] and Switzerland’, it is because it took the view that the Swiss Confederation fell within the scope of the concept of ‘third country’ in so far as the EEA-third country routes were concerned.

219    The Commission acknowledged, furthermore, that it was possible that it had ‘inadvertently’ included in the value of sales the turnover which some of the incriminated carriers generated on non-EU EEA-Switzerland routes during the period concerned. According to the Commission, the reason for this is that, in a request for information of 26 January 2009 concerning certain turnover figures, it did not inform the carriers concerned that turnover on non-EU EEA-Switzerland routes should be excluded from the value of sales on non-EU EEA-third country routes.

220    It must nevertheless be found, as the Commission did, that those aspects concerned only the revenues to be taken into account for the purposes of calculating the basic amount of the fine, not the definition of the geographic scope of the single and continuous infringement at issue here.

221    The present plea must therefore be rejected.

3.      The first plea, alleging infringement of the prohibition on arbitrariness, the principle of equal treatment and the obligation to state reasons

222    The applicant claims that the Commission acted arbitrarily and infringed the principle of equal treatment by penalising it for the single and continuous infringement while failing to do the same in respect of the non-incriminated carriers and for the 47 carriers which were not addressees of the Statement of Objections, but which are mentioned in the grounds of the contested decision, even though those carriers also participated in the cartel at issue (‘the 47 carriers’).

223    The applicant argues that the grounds of the contested decision contain references to the 47 carriers which are such as to suggest that the Commission adopted a position on their liability. Those grounds do not make it possible to identify any difference between the actions of those carriers and those of the incriminated carriers. Nor do those grounds contain any objective justification for the different legal consequences of that decision for those two categories of carrier. The applicant emphasises, in that connection, the effects of that unequal treatment in terms of the risk of being considered a ‘repeat offender’ if it engages in similar behaviour, expiry of the statute of limitations, and exposure to actions for damages.

224    The applicant also claims that the present case differs from the cases in which the Courts of the European Union held that the Commission was under no obligation to set out the reasons why it had decided to address a decision to certain undertakings and not to others. The applicant argues, first of all, that the account of the facts and the legal assessment thereof in the grounds of the contested decision raise questions concerning its ‘relative liability’, and not evidence on the file or the substance of its submissions. It is also a question of the material liability for an infringement and not how the geographic scope of such a market-sharing infringement should be delineated. Next, in the light of the expiry of the applicable limitation period, it is no longer conceivable that the 47 carriers should receive a fine. Lastly, as is confirmed, in the applicant’s view, by the judgment of 16 December 2015, Koninklijke Luchtvaart Maatschappij v Commission (T‑28/11, not published, EU:T:2015:995, paragraph 44), civil liability incurred as a result of infringement of the competition rules has become a relevant factor in the analysis of ‘relative liability’.

225    In its reply, the applicant adds that there are inconsistencies in the defence which raise the question whether the alleged difference in treatment constitutes a failure to comply with the obligation to state reasons. The applicant argues that the Commission thus stated that it did not rule on the liability of the 47 carriers, while maintaining that it assessed the evidence concerning those carriers and reached the conclusion that it was not appropriate to hold them liable for their conduct.

226    The Commission disputes the applicant’s line of argument.

227    It must be recalled that the principle of equal treatment, which is a general principle of EU law, enshrined in Article 20 of the Charter, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 51 and the case-law cited).

228    Breach of the principle of equal treatment as a result of different treatment thus presupposes that the situations concerned are comparable, having regard to all the elements which characterise them. The elements which characterise different situations, and hence their comparability, must in particular be determined and assessed in the light of the subject matter and purpose of the EU act which makes the distinction in question (see judgment of 20 May 2015, Timab Industries and CFPR v Commission, T‑456/10, EU:T:2015:296, paragraph 202 and the case-law cited).

229    In the present case, the applicant claims, in essence, that the Commission breached the principle of equal treatment by penalising it while refraining from finding all the 47 carriers liable and from consequently penalising them.

230    The applicant has in no way established that the 47 carriers were in a situation similar to its own. It merely asserts that ‘there is no (apparent) difference between [their] actions’ and that the fact that it made a leniency application is irrelevant. However, it fails to demonstrate that the Commission had a body of evidence against the carriers in question that was comparable to that which it had against the applicant.

231    Furthermore, even if the 47 carriers were in a situation similar to that of the applicant, and even if the Commission committed an unlawful act by not holding them liable, such an unlawful act, which is not the subject of the present action before the Court, cannot under any circumstances lead it to find that the applicant has been the subject of discrimination and therefore of an unlawful act. It follows from the case-law that the principle of equal treatment must be reconciled with the principle of legality, according to which a person may not rely, to his or her benefit, on an unlawful act committed in favour of a third party (judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 55).

232    Contrary to the applicant’s claim, the present case does not present any particularity that would justify not applying that case-law. In that connection, the fact that a finding of liability against other undertakings may, where appropriate, have an effect on the applicant’s ‘relative liability’ for the single and continuous infringement and for the payment of compensation, in the context of actions for damages, in respect of the damage suffered by the victims as a result, is not in any way particular to the present case. As to the circumstance that the Commission’s exercise of its power to impose penalties on the non-incriminated carriers would be time-barred, it is not apparent from the case-law that infringement of the principle of equal treatment would be precluded only in so far as the Commission retained the possibility of subsequently penalising undertakings which it has not already held liable for the infringement at issue.

233    The complaint alleging breach of the principle of equal treatment must therefore be rejected.

234    As regards the allegedly arbitrary nature of the Commission’s involvement, it is clear in particular from recitals 785 to 788 of the contested decision that the Commission duly set out the reasons why it held the applicant liable for the single and continuous infringement and penalised it on that account. The applicant has neither demonstrated nor alleged that those grounds are arbitrary.

235    As regards the absence of any finding of infringement or penalty against the 47 carriers, it should be noted that, in recital 716 of the contested decision, the Commission stated that it ‘[did] not necessarily hold every recital … and every single item of evidence contained therein to be of equal value. Rather, the recitals to which reference [was] made form[ed] part of the overall body of evidence the Commission [would] rely on and [had to] be evaluated in this context’.

236    That approach is consistent with the case-law – which, moreover, the applicant does not claim to be arbitrary – according to which the Commission is entitled to proceed on the basis of a body of evidence, assessed as a whole, in order to arrive at the firm conviction that the undertaking in question took part in the infringement, and which explains that the Commission was entitled to find, in the present case, that an overall assessment of the contacts at issue relied on as regards the applicant was sufficient to incriminate it, while taking the view that there was no sufficiently convincing body of evidence for other carriers concerned by some of the contacts referred to in the contested decision (see, to that effect, judgment of 26 January 2017, Commission v Keramag Keramische Werke and Others, C‑613/13 P, EU:C:2017:49, paragraph 51).

237    It follows that the complaint alleging infringement of the prohibition on arbitrariness must be rejected.

238    Lastly, as regards the alleged infringement of the obligation to state reasons, it must be borne in mind that the Commission is under no obligation to set out in a decision finding an infringement of Article 101 TFEU the reasons why other undertakings were neither pursued nor penalised. The obligation to state the reasons on which a measure is based cannot encompass an obligation for the institution from which it emanates to give reasons for the fact that it did not adopt other measures of a similar kind addressed to third parties (judgment of 8 July 2004, JFE Engineering v Commission, T‑67/00, T‑68/00, T‑71/00 and T‑78/00, EU:T:2004:221, paragraph 414).

239    In the present case, the applicant specifically relies on the Commission’s failure to explain why undertakings which were in a situation similar to its own were not held liable for the single and continuous infringement.

240    It follows that the present complaint cannot succeed.

241    In the light of all of the foregoing, the present plea must be rejected.

4.      The third plea in law, alleging breach of the obligation to state reasons and a manifest error of assessment in the treatment of the refusal to pay commission as a separate element of the single and continuous infringement 

242    The present plea, by which the applicant takes issue with the Commission for having treated the refusal to pay commission as an element of the single and continuous infringement distinct from the FSC and the SSC, falls into two parts. The first alleges a contradictory statement of reasons, and, the second, a manifest error of assessment.

(a)    The scope of the third plea

243    In its application, the applicant emphasises that it advances its third plea ‘in part because it expects the precise [classification] of [the refusal to pay commission] to play a role in the ongoing [action for] damages proceedings’. In the reply, it states however that that plea directly concerns the operative part of the contested decision and sets out preliminary considerations on the interpretation to be made of that operative part in so far as it relates to the refusal to pay commission. It alleges that the contested decision might be taken to mean that there was a breach of the competition rules in connection with such a refusal irrespective of the jurisdictions concerned. The statement of reasons for that decision does not expressly indicate that the issue of the refusal to pay commission related solely to the FSC and the SSC, or that it is an element of the infringement that is not separate from, but complementary to the agreements and concerted practices relating to the FSC and the SSC. The applicant argues, lastly, that it follows from the above that the commissions on the surcharges were payable.

244    In its defence, the Commission contends that the third plea in law is put forward with a view to actions for damages. That, however, is not the purpose of an action for annulment brought before the Court. In its rejoinder, the Commission accepts that the applicant has a legitimate interest in advancing this third plea, but it argues that the interpretation of the operative part of the contested decision on which the applicant relies is wrong and that, in any event, there is no manifest error or breach of the obligation to state reasons.

245    It should be observed that, since the present plea has been put forward in support of the claim for annulment, the applicant’s preliminary remarks on the interpretation to be made of the operative part of the contested decision in so far as it relates to the refusal to pay commission, since they do not support either of the two parts of the plea, must be regarded as inadmissible for reasons similar to those set out in paragraph 68 above. In any event, even if such remarks could be interpreted as inviting the Court to comment on the scope to be given to that operative part inasmuch as it relates to that refusal, it would then be necessary for the applicant to seek a declaratory judgment, which does not fall within the Court’s jurisdiction (see paragraph 69 above).

(b)    The first part of the plea, alleging contradictory reasoning

246    The applicant claims that, in order to classify the refusal to pay commission as an element of the single and continuous infringement which is separate from the introduction of the surcharges, the Commission relied on two contradictory assumptions, namely that (i) the commissions ‘would otherwise have been payable if part of rates’ (recital 879 of the contested decision) and (ii) the commissions are in fact rebates or discounts on surcharges (recitals 5 and 879 of that decision). According to the applicant, contrary to the second, the first assumption rests on the notion that freight forwarders are agents performing a specific service in relation to the surcharges, for which they are remunerated by way of pre-agreed commissions. The applicant claims that it is clear, moreover, from a judgment of the Tribunale di Milano (District Court, Milan, Italy) that it is specious to claim that commissions would have been due if it were not for the infringement.

247    The Commission disputes the applicant’s arguments.

248    In that regard, it should be recalled that the statement of the reasons for a measure must be logical and contain no internal inconsistency that would prevent a proper understanding of the reasons underlying that measure (judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 151).

249    A contradiction in the statement of the reasons on which a decision is based constitutes a breach of the obligation to state reasons, such as to affect the validity of the measure in question if it is established that, as a result of that contradiction, the addressee of the measure is not in a position to ascertain, wholly or in part, the real reasons for the decision and, as a result, the operative part of the decision is, wholly or in part, devoid of any legal justification (judgments of 24 January 1995, Tremblay and Others v Commission, T‑5/93, EU:T:1995:12, paragraph 42, and of 30 March 2000, Kish Glass v Commission, T‑65/96, EU:T:2000:93, paragraph 85).

250    Recital 5 of the contested decision reads as follows:

‘… By refusing to pay commission, the carriers ensured that surcharges did not become subject to competition through the negotiation of discounts with customers.’

251    Similarly, in recital 879 of the contested decision, the Commission found that the commissions were ‘in fact’ discounts on the surcharges, thus showing that it did not endorse the existence of an agency model between carriers and freight forwarders by its use of the word ‘commission’.

252    It is apparent from those two recitals that the Commission analysed the refusal to pay commission as a tariff coordination measure, the objective of which was to align the conduct of the incriminated carriers which had to respond to requests for discounts or rebates from their freight-forwarder customers.

253    It is true that, in recital 879 of the contested decision, the Commission also stated that ‘the commission on surcharges … would otherwise have been payable if [the surcharges had been] part of rates’.

254    However, contrary to the applicant’s submission, that sentence does not contradict the passages from the contested decision cited in paragraphs 250 and 251 above.

255    On the one hand, it is apparent from recital 675 to 702 of the contested decision that the discounts requested by the freight forwarders from 2004 onwards were presented as commissions on the collection of surcharges from shippers and that, in their contacts in that regard, the carriers themselves used the phrase ‘commission’ or ‘remuneration’, as is shown in particular by recitals 681 to 683, 685, 695, 696, 698 and 700 of that decision.

256    It follows that the use of the word ‘commission’ by the Commission to designate the conduct covered by the element at issue of the single and continuous infringement, far from constituting a position on the business relationship model then in force between carriers and freight forwarders, merely reflected the way in which they referred to the discounts sought by freight forwarders from 2004 onwards.

257    The reference to ‘commission on surcharges’ in recital 879 of the contested decision cannot, therefore, be regarded as contradicting the reference, in that recital and elsewhere in that decision, to ‘discounts on the surcharges’.

258    On the other hand, it should be noted that the reference in recital 879 of the contested decision, to the fact that commission would have been payable if the surcharges had been part of the rates is made immediately after the finding that the refusal to pay commission was facilitated by keeping the surcharges ‘as a discrete element of the overall price, distinct from rates’. Read in its context, that reference is therefore to be understood as meaning that the carriers, by making a distinction between surcharges and rates in their invoicing, prevented the discounts, or ‘commission’, which were applicable to the rates, being applied to the surcharges.

259    Thus, the reference in question, which does not concern discounts on surcharges but rather discounts on rates, does not, contrary to what the applicant claims, relate to the nature of the ‘commission on surcharges’ and does not, in particular, support the conclusion that it was agreed upon in advance in the context of an agency relationship.

260    In the light of the foregoing, this part of the plea must therefore be rejected.

(c)    The second part of the plea, alleging manifest error of assessment

261    The applicant submits that the Commission made a manifest error of assessment by finding that the element of the single and continuous infringement relating to the refusal to pay commission could be distinguished from that relating to the FSC and the SSC. According to the applicant, no specific aspect of the element of the single and continuous infringement relating to the refusal to pay commission is sufficiently distinctive to support that finding. Thus, the three elements of the single and continuous infringement pursued the same objective of coordinating the effective price of the FSC and the SSC and, in view of their periods of application, form part of a ‘continuum’. Lastly, the content and methods of those elements were similar.

262    The Commission contends that this part of the plea is inadmissible, on the ground that it does not comply with the requirements of Article 76(d) of the Rules of Procedure. It also disputes the merits of the applicant’s arguments.

(1)    The admissibility of the present part

263    Pursuant to the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of that Statute, and of Article 76(d) of the Rules of Procedure of the General Court, an application must, inter alia, contain the subject matter of the proceedings and a summary of those pleas in law. That information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any further information. In order to guarantee legal certainty and sound administration of justice, it is necessary, for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (orders of 28 April 1993, De Hoe v Commission, T‑85/92, EU:T:1993:39, paragraph 20, and of 21 May 1999, Asia Motor France and Others v Commission, T‑154/98, EU:T:1999:109, paragraph 49).

264    It is sufficiently clear and precise from the applicant’s arguments that the applicant claims that the Commission committed a manifest error of assessment by finding that the element of the single and continuous infringement relating to the refusal to pay commission could be distinguished from the two other elements of that infringement, even though it did not have a sufficiently distinctive character. The explanations which the Commission has put forward in order to challenge the substance of this complaint show, moreover, that it was able to understand the arguments relied on in support of it.

265    The plea of inadmissibility must therefore be rejected.

266    Furthermore, although the Commission refrained from relying on it in the rejoinder (see paragraph 244 above), it is necessary to examine the plea of inadmissibility on grounds of public policy alleging the applicant’s lack of interest in raising this part of the plea.

267    When questioned on the plea of inadmissibility in the context of the Court’s measures of organisation of procedure, the applicant claimed that it had an interest in raising this part of the plea, in so far as it supported its claims for annulment and was linked to the first part of the third plea.

268    In particular, the applicant submits that, by the two parts of the third plea, it disputes the inclusion of the refusal to pay commission in the single and continuous infringement in respect of which it was found liable, and seeks to have the reference, in Article 1 of the contested decision, to that part of that infringement deleted.

269    The applicant states that it would clearly derive an advantage from the deletion of the reference at issue in the operative part of the contested decision, in so far as that would cease to have legal effects with respect to the conduct relating to the refusal to pay commission, in particular under Article 4 thereof, requiring it to refrain, in the future, from any similar conduct, and that its ‘relative liability’ for the single and continuous infringement would be diminished, with consequences in particular for the amount of the fine that should be imposed on it.

270    The applicant adds that this part of the plea is linked to the first part of the third plea, in so far as, if it were established that no commission was payable, there would then be no basis for maintaining the finding of a separate element relating to the refusal to pay commission. The present part of the plea is therefore not limited to the issue of the distinct nature of that element, but seeks to establish that it cannot be included within the scope of the single and continuous infringement.

271    The Commission, in its answers to the written questions put by the Court, again contends that the applicant cannot rely on a legitimate interest in raising this part of the plea solely from the point of view of actions for damages.

272    The Commission points out, as regards the benefits which the applicant derives from raising this part of the plea in so far as concerns the effects of the contested decision, that Article 4 thereof is purely declaratory in nature and not such as to establish an interest in obtaining annulment of that decision. As to the argument relating to the impact on the amount of the fine, it is new and out of time and should therefore be rejected as inadmissible.

273    It must be borne in mind that a plea for annulment is inadmissible on the ground that the applicant does not have an interest in bringing proceedings in that regard where, even if it were well founded, annulment of the contested act on the basis of that plea would not give the applicant satisfaction (judgment of 9 June 2011, Evropaïki Dynamiki v ECB, C‑401/09 P, EU:C:2011:370, paragraph 49; see also judgment of 26 October 2010, CNOP and CCG v Commission, T‑23/09, EU:T:2010:452, paragraphs 25 and 26).

274    According to the case-law, the interest in bringing proceedings must be vested and present and is evaluated as at the date on which the action is brought. An applicant cannot therefore rely on future and uncertain situations to justify his or her interest in seeking the annulment of the contested act (see, to that effect, judgment of 20 September 2007, Salvat père & fils and Others v Commission, T‑136/05, EU:T:2007:295, paragraphs 34 and 47).

275    In the present case, it should be observed that the applicant, by its arguments, does not challenge the truth of the facts underlying the refusal to pay commission or the fact that they are anticompetitive in nature.

276    Nor does the applicant call into question the Commission’s findings in recitals 872 to 883 of the contested decision in order to establish that the infringement at issue was a single infringement. Thus, the applicant agrees, in paragraph 79 of the application, with the description of the anticompetitive objective and the single nature of the conduct at issue, in that it all contributed to price coordination in freight matters (recitals 872 to 876 and 879 of the decision). The applicant also agrees, in paragraphs 80 and 81 of the application, with the finding as to the identity of the undertakings (recitals 878 and 881 to 883 of that decision) and individuals (recital 900 of that decision) involved, as well as the finding of parallels between the discussions in which those individuals took part (recital 880 of the decision).

277    In so far as the applicant claims, in response to the written questions put by the Court, that the element relating to the refusal to pay commission cannot be included within the scope of the single and continuous infringement, it must be observed that the applicant raises a new plea, the inadmissibility of which is obvious in the light of Article 84(1) of the Rules of Procedure, in so far as that complaint is not an amplification of a plea set out in the application and is not justified by the emergence of new matters of fact or law. It cannot be considered that this plea overlaps with the present part of the plea, which relates not to the inclusion in the single and continuous infringement of the conduct relating to the refusal to pay commission, but to the question whether that conduct must be differentiated from the elements of the single and continuous infringement relating to the surcharges. It should be added that the written questions put by the Court after the reopening of the oral part of the procedure had a precisely defined purpose, as is apparent from paragraphs 57 and 266 above, which it is not for the applicant to ignore in the observations that it submitted in response.

278    In so far as the applicant raises the issue of the differentiation between the element of the single and continuous infringement relating to the refusal to pay commission and its elements relating to the surcharges, it disputes neither the existence of the single and continuous infringement nor its characterisation or scope. It disputes the way in which the Commission presented its various elements within that scope. The applicant seeks, in this part of the plea, to have the reference to the refusal to pay commission redacted from the operative part of the contested decision.

279    Even if the reference to the refusal to pay commission were to be redacted from the operative part of the contested decision, the findings in that decision relating to the conduct underpinning the establishment of that element of the single and continuous infringement, its anticompetitive nature and inclusion in the scope of that infringement would be maintained, since none of that conduct is disputed. In other words, the content of that decision would be unchanged, the only difference being that the anticompetitive conduct covered by the references in that operative part to the refusal to pay commission would then covered by the references to the FSC and the SSC read in the light of the reasons which constitute its essential basis.

280    Thus, the partial annulment of the contested decision on the basis of the present part of the plea would have no effect on the applicant’s liability for the single and continuous infringement, or on the gravity or duration thereof. Consequently, that annulment would also have no effect on the amount of the fine imposed on the applicant or on the scope of the order made in Article 4 of that decision. The applicant’s argument in that regard must therefore be rejected. As to the positive consequences which would ensue for the actions for damages brought against it in connection with the conduct to which the contested decision relates, it should be borne in mind that those consequences cannot, by themselves, form the basis of an interest in raising the present part of the plea (see, to that effect, paragraph 70 above). Moreover, those consequences are based on the hypothesis that the national court would interpret the operative part of that decision in accordance with the conjecture put forward by the applicant (see paragraph 243 above), which hypothesis the applicant itself accepts is uncertain and cannot, therefore, form the basis of an interest that was vested and present on the day the action was brought. Moreover, as has been found in paragraphs 71 to 77 above, it is apparent from the decision at issue that the geographic scope of that infringement, including that of the element relating to the refusal to pay commission, did not have a worldwide dimension, contrary to the interpretation put forward by the applicant, but was instead limited to the routes which the Commission regarded as falling within its jurisdiction.

281    In the light of the foregoing, it must be concluded that the partial annulment of the contested decision on the basis of this part of the plea would not procure an advantage for the applicant capable of forming the basis of its interest in bringing proceedings.

282    That conclusion is not called into question by the fact that the present part and the first part of the third plea are connected. It must be held that those parts are distinct, one based on infringement of an essential procedural requirement and the other based on a manifest error of assessment. The applicant has neither alleged nor demonstrated that the effects likely to follow from the acceptance of each of those parts are indissociable to such an extent that the finding of the admissibility of one of the parts should necessarily lead to that of the other.

283    In the light of the foregoing, this part of the plea must be declared inadmissible. It is therefore purely for the sake of completeness that the Court will examine the merits of that part.

(2)    The merits of the present part of the plea

284    It is apparent from the contested decision, and in particular from recitals 675 to 702 thereof, that the refusal to pay commission can be distinguished from the other two elements of the single and continuous infringement. Thus, it is one thing, for the carriers, to coordinate themselves directly on the application and value of the FSC and the SSC, but quite another for them to agree to deny freight forwarders a discount on the amount of those surcharges, once the principle of the application and amount thereof have been agreed upon.

285    It follows that the present part of the plea must be rejected as inadmissible and, in any event, unfounded.

286    Accordingly, the present plea in law must be rejected, as must the action in its entirety.

IV.    Costs

287    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

288    Under Article 135(1) of the Rules of Procedure, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his or her own, or even that he or she is not to be ordered to pay any. Furthermore, under Article 135(2) of those rules, the Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if that party has made the opposite party incur costs which the Court holds to be unreasonable or vexatious.

289    In the present case, the applicant has been unsuccessful and the Commission has expressly applied for costs. However, the Court considers that the circumstances of the case justify ordering the Commission to bear one third of its own costs and the applicant to bear its own costs and pay two thirds of those incurred by the Commission.

On those grounds,

THE GENERAL COURT (Fourth Chamber, Extended Composition)

hereby:

1.      Dismisses the action;

2.      Orders the European Commission to bear one third of its own costs;

3.      Orders Martinair Holland NV to bear its own costs and pay two thirds of those incurred by the Commission.

Delivered in open court in Luxembourg on 30 March 2022.

Table of contents

I. Background to the dispute

A. Administrative procedure

B. Decision of 9 November 2010

C. Action challenging the Decision of 9 November 2010 before the Court

D. Contested decision

II. Procedure and forms of order sought

III. Law

A. The observations on the giving of effect to the judgment of 16 December 2015, Martinair Holland v Commission (Case T67/11)

B. The claim for annulment

1. The second plea in law, alleging lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services

(a) The first part of the plea, alleging incorrect interpretation of Regulation No 411/2004

(b) The second and third parts, alleging, respectively, an error in the application of the implementation test and an error in the application of the qualified effects test

(1) The effects of coordination in relation to inbound freight services taken in isolation

(i) The relevance of the effect at issue

(ii) The foreseeability of the effect at issue

(iii) The substantiality of the effect at issue

(iv) The immediacy of the effect at issue

(2) The effects of the single and continuous infringement taken as a whole

2. The plea, raised of the Court’s own motion, alleging lack of jurisdiction on the part of the Commission, in the light of the EC-Switzerland Air Transport Agreement, to find and penalise an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes

3. The first plea, alleging infringement of the prohibition on arbitrariness, the principle of equal treatment and the obligation to state reasons

4. The third plea in law, alleging breach of the obligation to state reasons and a manifest error of assessment in the treatment of the refusal to pay commission as a separate element of the single and continuous infringement

(a) The scope of the third plea

(b) The first part of the plea, alleging contradictory reasoning

(c) The second part of the plea, alleging manifest error of assessment

(1) The admissibility of the present part

(2) The merits of the present part of the plea

IV. Costs

*      Language of the case: English.

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