# C_2017239EN.01005701.xml

| 24.7.2017 | EN | Official Journal of the European Union | C 239/57 |
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24.7.2017

EN

Official Journal of the European Union

C 239/57

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Action brought on 31 May 2017 — Cargolux Airlines v Commission

(Case T-334/17)

(2017/C 239/70)

Language of the case: English

Parties

Parties

Applicant: Cargolux Airlines International SA (Sandweiler, Luxembourg) (represented by: G. Goeteyn, Solicitor, E. Aliende Rodríguez, lawyer, and C. Rawnsley, Barrister)

Applicant:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

The applicant claims that the Court should:

| — | in the event that the Court upholds the First, Second, Third or Fourth pleas, annul in their entirety Articles 1(1) to 1(4) 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 (AT.39258 — Airfreight), insofar as they relate to Cargolux; |
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in the event that the Court upholds the First, Second, Third or Fourth pleas, annul in their entirety Articles 1(1) to 1(4) 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 (AT.39258 — Airfreight), insofar as they relate to Cargolux;

| — | in the event that the Court upholds the Fifth plea,






  — | annul Article 1(1) in its entirety, or if Article 1(1) is not annulled in its entirety, annul Article 1(1): (i) insofar as it relates to Security Surcharge and commissioning; (ii) insofar as it relates to the period 22 January 2001 to end of 2002; and (iii) insofar as it makes any finding of involvement in cartel conduct as that term is normally understood prior to 10 June 2005 at the earliest; |
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in the event that the Court upholds the Fifth plea,

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annul Article 1(1) in its entirety, or if Article 1(1) is not annulled in its entirety, annul Article 1(1): (i) insofar as it relates to Security Surcharge and commissioning; (ii) insofar as it relates to the period 22 January 2001 to end of 2002; and (iii) insofar as it makes any finding of involvement in cartel conduct as that term is normally understood prior to 10 June 2005 at the earliest;

| — | annul Article 1(2) in its entirety, or if Article 1(2) is not annulled in its entirety, annul Article 1(2): (i) insofar as it relates to Security surcharge and commissioning; (ii) insofar as it makes any finding of involvement in cartel conduct as that term is normally understood prior to 10 June 2005 at the earliest; |
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annul Article 1(2) in its entirety, or if Article 1(2) is not annulled in its entirety, annul Article 1(2): (i) insofar as it relates to Security surcharge and commissioning; (ii) insofar as it makes any finding of involvement in cartel conduct as that term is normally understood prior to 10 June 2005 at the earliest;

| — | annul Articles 1(3) and 1(4) in their entirety. |
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annul Articles 1(3) and 1(4) in their entirety.

| — | in the event that the Court upholds the Sixth plea, to annul Articles 1(2) and 1(3) of the contested decision insofar as they purport to find Cargolux to have participated in any infringement relating to inbound routes (i.e. from third country airports to airports inside the EU or in Iceland and Norway); |
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in the event that the Court upholds the Sixth plea, to annul Articles 1(2) and 1(3) of the contested decision insofar as they purport to find Cargolux to have participated in any infringement relating to inbound routes (i.e. from third country airports to airports inside the EU or in Iceland and Norway);

| — | cancel the fine imposed on Cargolux in Article 3 and, if the Court does not cancel the fine in its entirety, substantially reduce it pursuant to its unlimited jurisdiction; |
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cancel the fine imposed on Cargolux in Article 3 and, if the Court does not cancel the fine in its entirety, substantially reduce it pursuant to its unlimited jurisdiction;

| — | make the necessary consequential orders in respect of Article 4 insofar as it concerns Cargolux; |
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make the necessary consequential orders in respect of Article 4 insofar as it concerns Cargolux;

| — | order the Commission to pay Cargolux’ costs. |
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order the Commission to pay Cargolux’ costs.

Pleas in law and main arguments

Pleas in law and main arguments

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

| 1. | First plea in law, alleging a manifest error of assessment in that the Commission acted ultra vires by relying on evidence for routes and during periods over which it had no jurisdiction.






  — | The applicant puts forward that the Commission has unduly extended its jurisdiction by relying on evidence pre-dating: (a) 1 May 2004 in relation to EU-third country routes; (b) 19 May 2005 in relation to EEA (non EU Member States)-third country routes; and (c) 1 June 2002 in relation to EU-Switzerland routes, in support of its finding an infringement of Article 101 TFEU and Article 53 EEA Agreement in relation to intra-EEA routes. |
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1.

First plea in law, alleging a manifest error of assessment in that the Commission acted ultra vires by relying on evidence for routes and during periods over which it had no jurisdiction.

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The applicant puts forward that the Commission has unduly extended its jurisdiction by relying on evidence pre-dating: (a) 1 May 2004 in relation to EU-third country routes; (b) 19 May 2005 in relation to EEA (non EU Member States)-third country routes; and (c) 1 June 2002 in relation to EU-Switzerland routes, in support of its finding an infringement of Article 101 TFEU and Article 53 EEA Agreement in relation to intra-EEA routes.

| 2. | Second plea in law, alleging a breach of essential procedural requirement, a breach of rights of defence and a manifest error of assessment in that the Commission has breached essential procedural requirements and the applicant’s rights of defence by not issuing a new statement of objections prior to re-adoption.






  — | The applicant puts forward that the Commission was wrong to conclude that it was not required to issue a new statement of objections prior to its re-adoption of the contested decision, thereby breaching the applicant’s right of defence. |
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2.

Second plea in law, alleging a breach of essential procedural requirement, a breach of rights of defence and a manifest error of assessment in that the Commission has breached essential procedural requirements and the applicant’s rights of defence by not issuing a new statement of objections prior to re-adoption.

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The applicant puts forward that the Commission was wrong to conclude that it was not required to issue a new statement of objections prior to its re-adoption of the contested decision, thereby breaching the applicant’s right of defence.

| 3. | Third plea in law, alleging an error of law and a manifest error of assessment in that the Commission failed to carry out the necessary assessment of the legal and economic context in order to validly find a by object infringement. |
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3.

Third plea in law, alleging an error of law and a manifest error of assessment in that the Commission failed to carry out the necessary assessment of the legal and economic context in order to validly find a by object infringement.

| 4. | Fourth plea in law, alleging a breach of essential procedural requirement, a failure to give reasons, a breach of rights of defence and a manifest error of assessment of law and fact in that the Commission failed to identify with sufficient particularity the scope and parameters of the supposed infringement of Article 101 TFEU and the other relevant provisions.






  — | The applicant puts forward that the over-stretching of the concept of single continuous infringement has led to an irremediable blurring of the scope of the infringement, making it impossible to grasp its content. |
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4.

Fourth plea in law, alleging a breach of essential procedural requirement, a failure to give reasons, a breach of rights of defence and a manifest error of assessment of law and fact in that the Commission failed to identify with sufficient particularity the scope and parameters of the supposed infringement of Article 101 TFEU and the other relevant provisions.

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The applicant puts forward that the over-stretching of the concept of single continuous infringement has led to an irremediable blurring of the scope of the infringement, making it impossible to grasp its content.

| 5. | Fifth plea in law, alleging a manifest error of assessment in that the Commission failed to establish a reliable evidential basis for its conclusions or to prove the facts on which it bases its findings to the required legal standard.






  — | The applicant puts forward that the contested decision contains errors of fact and mistaken assessments in relation to all three constituent elements (FSC, SSC and commissioning of surcharges) of the alleged single and continuous infringement. According to the applicant, the Commission has also misused the concept of single and continuous infringement as a catch all designed to allow it to present as ‘evidence’ a disparate collection of facts and contacts, including conduct that is legal or irrelevant. |
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5.

Fifth plea in law, alleging a manifest error of assessment in that the Commission failed to establish a reliable evidential basis for its conclusions or to prove the facts on which it bases its findings to the required legal standard.

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The applicant puts forward that the contested decision contains errors of fact and mistaken assessments in relation to all three constituent elements (FSC, SSC and commissioning of surcharges) of the alleged single and continuous infringement. According to the applicant, the Commission has also misused the concept of single and continuous infringement as a catch all designed to allow it to present as ‘evidence’ a disparate collection of facts and contacts, including conduct that is legal or irrelevant.

| 6. | Sixth plea in law, alleging an error of law in that the Commission wrongly asserted jurisdiction over supposed anti-competitive coordination in relation to flights from third country airports to airports inside the EEA and erred in law since such activities are outside the territorial scope of Article 101 TFEU and Article 53 of the EEA Agreement. |
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6.

Sixth plea in law, alleging an error of law in that the Commission wrongly asserted jurisdiction over supposed anti-competitive coordination in relation to flights from third country airports to airports inside the EEA and erred in law since such activities are outside the territorial scope of Article 101 TFEU and Article 53 of the EEA Agreement.

| 7. | Seventh plea in law, in relation to the request for review of the fine pursuant to the unlimited jurisdiction of the Court, alleging a manifest error of assessment and a breach of the principle of proportionality.






  — | The applicant puts forward that the Commission incorrectly determined the value of sales by wrongly taking into account inbound flights and grossly overstated the overall gravity of the alleged infringement. In relation to the applicant, the Commission wrongly assessed the gravity and duration of the alleged infringement and mistakenly rejected mitigating factors. |
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7.

Seventh plea in law, in relation to the request for review of the fine pursuant to the unlimited jurisdiction of the Court, alleging a manifest error of assessment and a breach of the principle of proportionality.

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The applicant puts forward that the Commission incorrectly determined the value of sales by wrongly taking into account inbound flights and grossly overstated the overall gravity of the alleged infringement. In relation to the applicant, the Commission wrongly assessed the gravity and duration of the alleged infringement and mistakenly rejected mitigating factors.

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