CELEX: 62017TJ0350
Competition
Agreements, decisions and concerted practices
Market for airfreight
Decision finding an infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport
Coordination of elements of the price of airfreight services (fuel surcharge, security surcharge, payment of commission on surcharges)
Exchange of information
Territorial jurisdiction of the Commission
Ne bis in idem principle
State coercion
Single and continuous infringement
Amount of the fine
Value of sales
Gravity of the infringement
Unlimited jurisdiction

)
…
II.

Procedure and forms of order sought
By application lodged at the Court Registry on 1 June 2017, the applicants brought the present action.
The Commission lodged its defence at the Court Registry on 29 September 2017.
The applicants lodged their reply at the Court Registry on 15 December 2017.
The Commission lodged its rejoinder at the Court Registry on 2 March 2018.
On 24 April 2019, on a proposal from the Fourth Chamber, the Court decided, pursuant to Article 28 of its Rules of Procedure, to refer the present case to a chamber sitting in extended composition.
On 7 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.
At the hearing on 26 June 2019, the parties presented oral argument and answered the questions put by the Court. On that occasion, the applicants produced a new document which the Court decided to place on the file while reserving the question of its admissibility.
By order of 31 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 concerning 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.
The parties replied within the prescribed period to a series of questions put by the Court on 4 August 2020, and then submitted observations on their respective replies.
By decision of 6 November 2020, the Court again closed the oral part of the procedure.
The applicants claim, in essence, that the Court should:
–
annul the contested decision, in its entirety or in part, in so far as it concerns them;
–
in addition, or in the alternative, substantially reduce the fine imposed on them;
–
order the Commission to pay the costs;
–
make any other order as may be appropriate in the circumstances of the case.
The Commission contends, in essence, that the Court should:
–
dismiss the action;
–
alter the amount of the fine imposed on the applicants by withdrawing the benefit of the general 50% reduction and of the general 15% reduction, should the Court find that the turnover from the sale of inbound freight services could not be included in the value of sales;
–
order the applicants to pay the costs.
III.

Law
…
A.

The claim for annulment
…
6.

The fourth plea in law, alleging errors of law and fact and errors of assessment in connection with the finding that the applicants participated in the single and continuous infringement
…
(b)

Second part, alleging infringement of the principle
ne bis in idem
in so far as the Commission found that the applicants participated in the single and continuous infringement on intra-EU routes before 1 May 2004 and on EU‑Switzerland routes
The applicants claim that the conduct prior to 1 May 2004 cannot be relied on against them to establish their involvement in an infringement relating to intra-EU routes, as well as conduct related to EU‑Switzerland routes, without breaching the principle
ne bis in idem
, since they were not found in the 2010 Decision to have participated in any such infringement.
According to the applicants, the principles stemming from the judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (
C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P
,
EU:C:2002:582
), referred to in recitals 1056 and 1057 of the contested decision, should not result in the principle
ne bis in idem
being inapplicable, in so far as (i) the judgment of 16 December 2015, Singapore Airlines and Singapore Airlines Cargo Pte v Commission (
T‑43/11
, not published,
EU:T:2015:989
), did not annul the decision of 9 November 2010 on the basis of a purely formal defect, but of a serious infringement of the rights of the defence, and (ii) the contested decision is substantively broader in scope than that decision.
The Commission disputes the applicants’ line of argument.
It is settled case-law that the principle
ne bis in idem
, moreover laid down in Article 50 of the Charter, must be observed in proceedings for the implementation of competition law under which fines are imposed. That principle precludes an undertaking being found liable or proceedings being brought against it afresh on the grounds of anticompetitive conduct for which it has been penalised or declared not liable by an earlier decision that can no longer be challenged (see judgment of 14 February 2012, Toshiba Corporation and Others,
C‑17/10
,
EU:C:2012:72
, paragraph
and the case-law cited).
In the present case, the applicants rely on the Decision of 9 November 2010 which, in their view, constitutes an earlier and final decision declaring them not liable for the single and continuous infringement in respect of intra-EU and EU‑Switzerland routes.
It is necessary, first of all, to determine whether the applicants’ claim that that decision constitutes a declaration of non-liability is well founded.
In that regard, it should be noted that such a declaration presupposes that the liability of the undertaking concerned has been assessed following an examination of the circumstances of the case, in other words that there has been an assessment of the substance of the case. Such an assessment presupposes, in turn, that the Commission has carried out a study or evaluation of the evidence placed on the file and carried out an assessment of the participation of the undertaking concerned in one or all of the forms of conduct which were the subject of the statement of objections, in order to determine whether its liability has been established.
In the present case, in paragraph 1582 of the Statement of Objections, the Commission stated that it ‘[was envisaging] issuing a decision … finding that the undertakings which are the addressees of the present Statement of Objections have infringed Article [101 TFEU] and Article 53 of the EEA Agreement and Article 8 of Article 8 of the [EC‑Switzerland Air Transport Agreement]’. As is apparent from paragraph 8 above, the applicants were among those addressees.
It is apparent from paragraphs 3, 129, 1389, 1395 and 1434, and from paragraph 1575(c) and paragraph 1577 of the Statement of Objections that the infringement which the Commission envisaged finding in paragraph 1582 of that statement covered, inter alia, intra-EU routes for the whole infringement period and EU‑Switzerland routes from 1 June 2002.
It follows that, in the Statement of Objections, the Commission envisaged finding the applicants liable for an infringement of the relevant competition rules on intra-EU and EU‑Switzerland routes.
By contrast, in the Decision of 9 November 2010, the Commission did not expressly take a view on the applicants’ liability on intra-EU and EU‑Switzerland routes. In the operative part of that decision, it held them liable for the single and continuous infringement in so far as it concerned EU‑third country routes (Article 2 of the Decision of 9 November 2010) and non-EU EEA‑third country routes (Article 3 of that decision), but not in so far as it concerned intra-EEA routes, which include intra-EU routes (Article 1 of that decision) or EU‑Switzerland routes (Article 4 of that decision). Nor did it penalise them for infringement of the relevant competition rules on those last two categories of routes. Nonetheless, the Commission did not expressly rule out the possibility that they might be liable for such infringements on those categories of routes.
The question is therefore whether it can be inferred from that silence that, in the Decision of 9 November 2010, the Commission implicitly declared the applicants not liable for the single and continuous infringement in so far as it concerned intra-EU and EU‑Switzerland routes, so that it could no longer impose a penalty on them in that regard in the contested decision without infringing the principle
ne bis in idem
.
In that regard, it should be recalled that the supervisory task conferred by Article 105(1) TFEU, Article 55(1) of the EEA Agreement and the EC‑Switzerland Air Transport Agreement on the Commission in competition matters does not mean that it is under an obligation to rule on the existence or otherwise of an infringement of the relevant competition rules (see, to that effect, judgments of 18 September 1992, Automec v Commission,
T‑24/90
,
EU:T:1992:97
, paragraphs
to
, and of 16 October 2013, Vivendi v Commission,
T‑432/10
, not published,
EU:T:2013:538
, paragraph
). Moreover, it cannot be inferred from Regulation No 1/2003 and the implementing provisions of Article 53 of the EEA Agreement and Article 8 of the EC‑Switzerland Air Transport Agreement that the Commission is required to find and sanction all anticompetitive conduct (see, to that effect, judgment of 9 September 2015, Philips v Commission,
T‑92/13
, not published,
EU:T:2015:605
, paragraph
).
Nor can it follow from the provisions of Regulation No 1/2003 or from the implementing provisions of Article 53 of the EEA Agreement or Article 8 of the EC‑Switzerland Air Transport Agreement that the Commission is under any such obligation when it states, in the statement of objections, that it envisages finding an infringement of the relevant competition rules. The Commission cannot therefore be obliged, in the final decision, to rule on whether or not there has been an infringement of the relevant competition rules which it envisaged finding in the statement of objections.
It cannot therefore be concluded that, by refraining from finding an infringement of the relevant competition rules in the final decision as regards certain conduct referred to in the Statement of Objections, the Commission, implicitly but necessarily, made a declaration of non-liability in that regard.
The general scheme of Regulation No 1/2003 supports that interpretation. It should be noted that it is from Article 10 of Regulation No 1/2003, which empowers it to find that Article 101 TFEU does not apply to specific conduct, in particular because the conditions of Article 101(1) TFEU are not met, that the Commission derives its power to find that there has been no infringement of Article 101 TFEU and thus to adopt a ‘negative’ decision on the substance which may prevent a subsequent finding of an infringement of that article (see, to that effect, judgment of 3 May 2011, Tele2 Polska,
C‑375/09
,
EU:C:2011:270
, paragraphs
,
,
and
). The same applies where the Commission makes use of the powers conferred on it by Regulation No 1/2003 to apply Article 53 of the EEA Agreement and Article 8 of the EC‑Switzerland Air Transport Agreement.
Article 10 of Regulation No 1/2003 is the only legal basis on which the Commission may rely in order to adopt a decision finding that the Treaty rules on competition are not applicable to specific individual conduct.
That is apparent, first, from the wording of the title of Article 10 of that regulation and from its provisions. That article concerns the ‘finding of inapplicability’, and provides that ‘where the [Union] public interest relating to the application of Articles [101 and 102 TFEU] so requires, the Commission, acting on its own initiative, may by decision find that Article [101 TFEU] is not applicable to an agreement, a decision by an association of undertakings or a concerted practice, either because the conditions of Article [101(1) TFEU] are not fulfilled, or because the conditions of Article [101(3) TFEU] are satisfied’.
Secondly, it should be noted that no other provision of Regulation No 1/2003 confers on the Commission the power to find that the Treaty rules on competition are not applicable to specific individual conduct. Recital 14 of that regulation makes explicit the legislature’s intention to limit strictly the Commission’s power in that regard to the situations covered by Article 10 of that regulation, stating that such a finding may be made only in ‘in exceptional cases where the public interest of the [Union] so requires’.
Thirdly, the Court of Justice has held that the opening of a proceeding by the Commission with a view to penalising anticompetitive conduct does not permanently and definitively remove the power of Member States’ competition authorities to apply Article 101 TFEU to the conduct concerned, the power of those authorities being restored once the proceeding initiated by the Commission is concluded, including by means of a decision taken on the basis of Article 7 of Regulation No 1/2003 (see, to that effect, judgment of 14 February 2012, Toshiba Corporation and Others,
C‑17/10
,
EU:C:2012:72
, paragraphs
,
,
and
). It is in that context that it is necessary to assess the significance to be ascribed to the Commission’s silence as regards certain types of conduct, in the context of a decision taken on the basis of Article 7 of Regulation No 1/2003. To interpret that silence as an implicit finding that there has been no infringement of the competition rules would mean that the competition authorities of the Member States could never recover their power to apply Article 101 TFEU in relation to conduct in respect of which the Commission initiated a proceeding and then closed that proceeding by adopting a decision taken on the basis of Article 7 of Regulation No 1/2003, on the ground that the principle
ne bis in idem
would be infringed. Such an interpretation would run counter to the case-law referred to in this paragraph.
Fourthly, it must be pointed out that the Court has examined the effect of decisions taken by the competition authorities of the Member States on the basis of the second paragraph of Article 5 of Regulation No 1/2003, by which they consider, on the basis of the information in their possession, that the conditions for prohibition are not met. It is thus apparent from paragraphs 22 to 28 of the judgment of 3 May 2011, Tele2 Polska (
C‑375/09
,
EU:C:2011:270
), that such decisions do not entail a declaration of non-liability which may prevent a subsequent finding of an infringement. In other words, the anticompetitive acts of an undertaking which are targeted by a decision of that type may subsequently be the subject of proceedings and, as the case may be, a finding of liability, without there being any need to consider that those proceedings infringe the principle
ne bis in idem
(see, to that effect, judgments of 3 May 2011, Tele2 Polska,
C‑375/09
,
EU:C:2011:270
, paragraphs
to
; of 25 November 2014, Orange v Commission,
T‑402/13
,
EU:T:2014:991
, paragraphs
to
; see also, to that effect, Opinion of Advocate General Mazák in Tele2 Polska,
C‑375/09
,
EU:C:2010:743
, point
).
In that regard, it should be noted that a decision that there are no grounds for action taken on the basis of the second paragraph of Article 5 of Regulation No 1/2003 may be adopted after the examination on the substance of conduct and the sending of an indictment, on the basis of the statement of objections issued by the Commission pursuant to Article 10 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (
OJ 2004 L 123, p. 18
).
Thus, neither the state of progress of the proceedings nor the scope of the analysis of the merits of the allegations made in that context by the competent competition authority is such as to alter the significance of its silence in the final decision as to all or part of the liability of the undertaking concerned.
Although those considerations fall within the context of the interpretation of the provisions of the second paragraph of Article 5 of Regulation No 1/2003, they provide useful information on the scope of decisions taken by the Commission on the basis of Article 7 of Regulation No 1/2003, from the point of view of the application of the principle
ne bis in idem
. The specific context of those two articles may be compared, in so far as they must both be assessed, in particular, in the light of the powers specifically conferred on the Commission under Article 10 of that regulation. Furthermore, since a provision of secondary EU law must be interpreted, as far as possible, in a manner consistent with the provisions of the Treaties and the general principles of EU law, the scope given by the Court, in its judgment of 3 May 2011, Tele2 Polska (
C‑375/09
,
EU:C:2011:270
), to the power to decide that there are no grounds for action is to be understood as meaning that that power, construed in this way, is consistent with the principle
ne bis in idem
.
Therefore, even on the assumption that a decision taken by the Commission on the basis of Article 7 of Regulation No 1/2003 constitutes, as regards conduct for which the conditions for prohibition have not been declared met, a decision that there are no grounds for action, it cannot lead to a declaration of non-liability.
In the present case, it should be noted that the Decision of 9 November 2010 is a decision finding an infringement taken on the basis of Article 7 of Regulation No 1/2003. However, it is not apparent from that decision, nor is it argued before the Court, that the Commission also intended to apply, in the context of that decision, Article 10 of Regulation No 1/2003.
It follows that the Decision of 9 November 2010, which was not adopted on the basis of Article 10 of Regulation No 1/2003 for the purpose of finding that the applicants had not infringed Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC‑Switzerland Air Transport Agreement on intra-EEA and EU‑Switzerland routes, and which does not contain, in its operative part, a declaration to that effect, cannot constitute a declaration of non-liability on the part of the applicants in that regard.
Lastly, in so far as the applicants claim that the principles deriving from the judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (
C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P
,
EU:C:2002:582
), must not result in the principle
ne bis in idem
being inapplicable, it must be held that that argument is based on the premiss that the conditions for the application of that principle were satisfied. As is apparent from paragraph 545 above, the applicants have not been declared not liable for the conduct at issue by a previous decision, so that the principle
ne bis in idem
does not apply in the present case. The premiss on which the present argument is based is therefore lacking.
Even if the applicants also intended, by reference to that case-law, to argue that the judgment of 16 December 2015, Singapore Airlines and Singapore Airlines Cargo Pte v Commission (
T‑43/11
, not published,
EU:T:2015:989
), was tantamount to an ‘acquittal’ in so far as the annulment by the General Court was not ordered in the light of a purely formal defect, it is sufficient to note that the General Court held that the Decision of 9 November 2010 was vitiated by a defective statement of reasons, which justified its annulment (see paragraph 16 above), with the result that, contrary to what the applicants claim, that decision was indeed annulled on procedural grounds without a ruling on the merits of the facts complained of.
In that regard, it should also be noted that, by that judgment, the General Court annulled the Decision of 9 November 2010 on the ground, inter alia, that that decision contained contradictions as regards the extent of the applicants’ liability in relation to intra‑EU and EU‑Switzerland routes.
In the light of the foregoing, this part of the plea must be rejected, without it being necessary to rule on the final nature of the alleged declaration of non-liability or on the existence of a second set of proceedings concerning the same facts arising from the adoption of the contested decision in consequence of the annulment by the Court of the Decision of 9 November 2010.
…

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 Singapore Airlines and Singapore Airlines Cargo to bear their own costs and pay two thirds of those incurred by the Commission.

Kanninen
Schwarcz
Iliopoulos
Spielmann
Reine
Delivered in open court in Luxembourg on 30 March 2022.
[Signatures]
(
*1
)	Language of the case: English.
(
)	Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.