# C_2011080EN.01003201.xml

| 12.3.2011 | EN | Official Journal of the European Union | C 80/32 |
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12.3.2011

EN

Official Journal of the European Union

C 80/32

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Action brought on 24 January 2011 — British Airways v Commission

(Case T-48/11)

2011/C 80/57

Language of the case: English

Parties

Parties

Applicant: British Airways plc (Harmondsworth, United Kingdom) (represented by: K. Lasok, QC, R. O’Donoghue, Barristers, and B. Louveaux, Solicitor)

Applicant:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

| — | annul the decision in so far as it finds that the applicant was party to an infringement concerning commission on surcharges and/or to remit the matter to the Commission for the reconsideration of its decision on that issue; |
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annul the decision in so far as it finds that the applicant was party to an infringement concerning commission on surcharges and/or to remit the matter to the Commission for the reconsideration of its decision on that issue;

| — | annul the decision in so far as it finds that the start date of the applicant’s infringement was 22 January 2001 and to substitute 1 October 2001 for that date and/or to remit the matter to the Commission for the reconsideration of its decision on that issue; |
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annul the decision in so far as it finds that the start date of the applicant’s infringement was 22 January 2001 and to substitute 1 October 2001 for that date and/or to remit the matter to the Commission for the reconsideration of its decision on that issue;

| — | annul the decision in so far as it finds that matters relating to Hong Kong, Japan, India, Thailand, Singapore, Korea, and Brazil violated Article 101 TFEU, Article 53 EEA, and Article 8 Swiss Agreement and/or to remit the matter to the Commission for the reconsideration of its decision on that issue; |
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annul the decision in so far as it finds that matters relating to Hong Kong, Japan, India, Thailand, Singapore, Korea, and Brazil violated Article 101 TFEU, Article 53 EEA, and Article 8 Swiss Agreement and/or to remit the matter to the Commission for the reconsideration of its decision on that issue;

| — | annul or substantially reduce the fine imposed on the applicant pursuant to the decision by reference to each or every one of the points above and/or the General Court’s unlimited jurisdiction; |
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annul or substantially reduce the fine imposed on the applicant pursuant to the decision by reference to each or every one of the points above and/or the General Court’s unlimited jurisdiction;

| — | order the Commission to pay the applicant’s legal and other costs and expenses in relation to this matter. |
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order the Commission to pay the applicant’s legal and other costs and expenses in relation to this matter.

Pleas in law and main arguments

Pleas in law and main arguments

The applicant seeks the partial annulment of Commission Decision C(2010) 7694 final of 9 November 2010 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union, Article 53 of the EEA Agreement, and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39.258—Airfreight) concerning the coordination of various elements of the price to be charged for airfreight services on: (i) routes between airports within the EEA; (ii) routes between airports within the EU and airports outside the EEA; (iii) routes between airports in EEA countries that are not Member States of the EU and third countries; and routes between airports within the EU and Switzerland. The coordination found in the decision relates to fuel surcharge, security surcharge, and the payment of commission on surcharges to freight forwarders.

In support of the action, the applicant relies on seven pleas in law.

| 1. | First plea in law, alleging a manifest errors of assessment and inadequate grounds inasmuch as the Commission did not provide sufficiently precise evidence that the applicant participated in the coordination of the payment of commission on surcharges whilst ignoring the significant body of evidence that it had in its possession that demonstrated the opposite. |
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1.

First plea in law, alleging a manifest errors of assessment and inadequate grounds inasmuch as the Commission did not provide sufficiently precise evidence that the applicant participated in the coordination of the payment of commission on surcharges whilst ignoring the significant body of evidence that it had in its possession that demonstrated the opposite.

| 2. | Second plea in law, alleging a manifest error of assessment and breach of the defendant’s duty to prove to the requisite legal standard the starting date of the applicant’s infringement. In this regard the applicant submits that:






  — | the evidence put forward does not satisfy the criteria of precision and consistency in relation to the duration of the infringement; |
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2.

Second plea in law, alleging a manifest error of assessment and breach of the defendant’s duty to prove to the requisite legal standard the starting date of the applicant’s infringement. In this regard the applicant submits that:

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the evidence put forward does not satisfy the criteria of precision and consistency in relation to the duration of the infringement;

| — | the Commission’s finding on the starting date is contrary to the principle in dubio pro reo. |
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the Commission’s finding on the starting date is contrary to the principle in dubio pro reo.

in dubio pro reo

| 3. | Third plea in law, alleging the errors in law and of fact and manifest errors of assessment on the ground that the Commission lacked jurisdiction to apply Article 101 TFEU and/or Article 53 EEA in respect of the situation regarding the aviation regulatory legislation and administration regimes in Hong Kong, Japan, India, Thailand, Singapore, Korea, and Brazil, and/or failed to exercise its powers in accordance with the principle of international comity and/or failed to take any or any proper account of the principle of international comity when exercising its powers. |
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3.

Third plea in law, alleging the errors in law and of fact and manifest errors of assessment on the ground that the Commission lacked jurisdiction to apply Article 101 TFEU and/or Article 53 EEA in respect of the situation regarding the aviation regulatory legislation and administration regimes in Hong Kong, Japan, India, Thailand, Singapore, Korea, and Brazil, and/or failed to exercise its powers in accordance with the principle of international comity and/or failed to take any or any proper account of the principle of international comity when exercising its powers.

| 4. | Fourth plea in law, alleging the infringement of the principle of proportionality, the principle that penalties must fit the offence and the principle of equal treatment, since the fine imposed on the applicant is disproportionate to the gravity of the infringement. In this regard the applicant submits that:






  — | in the case of an object infringement, the Commission is bound to have regard to the “nature” and “capability” in its proper market and economic context assessing and calibrating its gravity; |
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4.

Fourth plea in law, alleging the infringement of the principle of proportionality, the principle that penalties must fit the offence and the principle of equal treatment, since the fine imposed on the applicant is disproportionate to the gravity of the infringement. In this regard the applicant submits that:

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in the case of an object infringement, the Commission is bound to have regard to the “nature” and “capability” in its proper market and economic context assessing and calibrating its gravity;

| — | properly analysed, there were powerful reasons in the present case to regard the applicant’s infringement as less grave that the Commission did in applying its gravity multiplier. |
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properly analysed, there were powerful reasons in the present case to regard the applicant’s infringement as less grave that the Commission did in applying its gravity multiplier.

| 5. | Fifth plea in law, alleging the breaches of the duty to state adequate reasons and the principle of proportionality in increasing the basic amount of the fine by an additional amount of 16 % for deterrence. |
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5.

Fifth plea in law, alleging the breaches of the duty to state adequate reasons and the principle of proportionality in increasing the basic amount of the fine by an additional amount of 16 % for deterrence.

| 6. | Sixth plea in law, alleging an error in law and of fact and manifest errors of assessment, and infringement of the principles of legitimate expectations and/or equal treatment and the Leniency Notice, insofar as the Commission granted the applicant the lowest level of reduction in fine in respect of leniency despite being the first undertaking to apply for a reduction in fine under the Leniency Notice. |
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6.

Sixth plea in law, alleging an error in law and of fact and manifest errors of assessment, and infringement of the principles of legitimate expectations and/or equal treatment and the Leniency Notice, insofar as the Commission granted the applicant the lowest level of reduction in fine in respect of leniency despite being the first undertaking to apply for a reduction in fine under the Leniency Notice.

| 7. | Seventh plea in law, alleging a manifest error of assessment and infringement of the principle of equal treatment and the principle of proportionality in not granting the applicant a reduction of the fine by way of mitigation, insofar as the Commission failed to take equal account of the fact that the applicant had limited participation in the infringement and did not participate in all elements of the infringement. |
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7.

Seventh plea in law, alleging a manifest error of assessment and infringement of the principle of equal treatment and the principle of proportionality in not granting the applicant a reduction of the fine by way of mitigation, insofar as the Commission failed to take equal account of the fact that the applicant had limited participation in the infringement and did not participate in all elements of the infringement.

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