# C_2011080EN.01003101.xml

| 12.3.2011 | EN | Official Journal of the European Union | C 80/31 |
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12.3.2011

EN

Official Journal of the European Union

C 80/31

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Action brought on 24 January 2011 — Deutsche Lufthansa and Others v Commission

(Case T-46/11)

2011/C 80/56

Language of the case: English

Parties

Parties

Applicants: Deutsche Lufthansa AG (Köln, Germany), Lufthansa Cargo AG (Kelsterbach, Germany) and Swiss International Air Lines AG (Basel, Switzerland) (represented by: S. Völcker, F. Louis, E. Arsenidou and A. Israel, lawyers)

Applicants:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

| — | annul Articles 1-4 of the contested decision; |
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annul Articles 1-4 of the contested decision;

| — | order the Commission to bear the costs. |
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order the Commission to bear the costs.

Pleas in law and main arguments

Pleas in law and main arguments

Application for annulment of Commission Decision C(2010) 7694 final of 9 November 2010 in case COMP/39.258 — Airfreight relating to the proceeding under Article 101 TFEU and Article 53 of the EEA Agreement.

In support of the action, the applicants rely on four pleas in law:

| 1. | First plea in law alleging that the contested decision infringes Article 11(2) and Article 11(1) of the EC-Swiss Agreement by relying on contacts between competitors which took place in Switzerland. |
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1.

First plea in law alleging that the contested decision infringes Article 11(2) and Article 11(1) of the EC-Swiss Agreement by relying on contacts between competitors which took place in Switzerland.

| 2. | Second plea in law alleging that the contested decision infringes Article 1(2) of Regulation No 3975/87 (1) by relying on contacts between competitors which took place prior to 1 May 2004 in jurisdictions outside the EEA in order to establish:






  — | an infringement of Article 101 TFUE and Article 53 of the EEA Agreement involving European carriers (including the applicants) prior to 1 May 2004; |
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2.

Second plea in law alleging that the contested decision infringes Article 1(2) of Regulation No 3975/87 (1) by relying on contacts between competitors which took place prior to 1 May 2004 in jurisdictions outside the EEA in order to establish:

1

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an infringement of Article 101 TFUE and Article 53 of the EEA Agreement involving European carriers (including the applicants) prior to 1 May 2004;

| — | the origin of a single and continuous infringement prior to 1 May 2004 so as to be able to find an infringement immediately starting as of that date. |
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the origin of a single and continuous infringement prior to 1 May 2004 so as to be able to find an infringement immediately starting as of that date.

| 3. | Third plea in law alleging that the contested decision infringes Article 101 TFUE, Article 53 of the EEA Agreement and Article 8 of the EC-Swiss Agreement by characterizing contacts between competitors which took place in jurisdictions outside the EEA as constituting part of the same single and continuous infringement with contacts between competitors that took place at headquarter level. |
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3.

Third plea in law alleging that the contested decision infringes Article 101 TFUE, Article 53 of the EEA Agreement and Article 8 of the EC-Swiss Agreement by characterizing contacts between competitors which took place in jurisdictions outside the EEA as constituting part of the same single and continuous infringement with contacts between competitors that took place at headquarter level.

| 4. | Fourth plea in law alleging that the contested decision infringes Article 101 TFUE and Article 53 of the EEA Agreement to the extent that it is premised on the notion that contacts between competitors taking place outside the EEA constitute infringements of Article 101 TFUE and of Article 53 of the EEA Agreement on their own, i.e. irrespective of whether they constitute part of the same single and continuous infringement with contacts between competitors that took place at the headquarter level. Agreements or concerted practices with respect to EEA-inbound cargo shipments do not restrict competition within the EEA, nor do they affect trade between Member States. Moreover, government intervention in a number of relevant jurisdictions precludes the application of Article 101 TFUE and Article 53 of the EEA Agreement. |
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4.

Fourth plea in law alleging that the contested decision infringes Article 101 TFUE and Article 53 of the EEA Agreement to the extent that it is premised on the notion that contacts between competitors taking place outside the EEA constitute infringements of Article 101 TFUE and of Article 53 of the EEA Agreement on their own, i.e. irrespective of whether they constitute part of the same single and continuous infringement with contacts between competitors that took place at the headquarter level. Agreements or concerted practices with respect to EEA-inbound cargo shipments do not restrict competition within the EEA, nor do they affect trade between Member States. Moreover, government intervention in a number of relevant jurisdictions precludes the application of Article 101 TFUE and Article 53 of the EEA Agreement.

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(1)  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 L 374, p. 1

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