# C_2017239EN.01005501.xml

| 24.7.2017 | EN | Official Journal of the European Union | C 239/55 |
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24.7.2017

EN

Official Journal of the European Union

C 239/55

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Action brought on 29 May 2017 — Air Canada v Commission

(Case T-326/17)

(2017/C 239/68)

Language of the case: English

Parties

Parties

Applicant: Air Canada (Saint-Laurent, Quebec, Canada) (represented by: T. Soames, G. Bakker and I.-Z. Prodromou-Stamoudi, lawyers, and J. Joshua, Barrister)

Applicant:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

The applicant claims that the Court should:

| — | annul 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), in whole or in part as it relates to the applicant; |
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annul 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), in whole or in part as it relates to the applicant;

| — | annul or in the alternative reduce substantially the amount of the fine; |
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annul or in the alternative reduce substantially the amount of the fine;

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

Pleas in law and main arguments

Pleas in law and main arguments

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

| 1. | First plea in law, alleging a breach of the rights of defence, breach of the right to be heard and breach of essential procedural requirement.
  According to the applicant, the European Commission failed to give notice in the statement of objections of the theory of its entire case as expressed for the first time in the contested decision, thus preventing the applicant from defending itself against the charges, these being sufficient grounds for the annulment of the contested decision in its entirety. |
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1.

First plea in law, alleging a breach of the rights of defence, breach of the right to be heard and breach of essential procedural requirement.

According to the applicant, the European Commission failed to give notice in the statement of objections of the theory of its entire case as expressed for the first time in the contested decision, thus preventing the applicant from defending itself against the charges, these being sufficient grounds for the annulment of the contested decision in its entirety.

| 2. | Second plea in law, alleging a breach of the rights of defence, a failure to state reasons and a breach of essential procedural requirement.
  According to the applicant, the European Commission violated the applicant’s rights of defence by failing to (i) provide any or any adequate reasoning to support the finding of a single and continuous infringement on all routes; (ii) define the nature and scope of the alleged infringement(s) with the particularity required by law; (iii) correct the inherent contradiction between a single and continuous infringement and four separate infringements that led to the annulment of Commission Decision C (2010) 7694 final of 9 November 2010, these being sufficient grounds for the annulment of the Decision in its entirety. |
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2.

Second plea in law, alleging a breach of the rights of defence, a failure to state reasons and a breach of essential procedural requirement.

According to the applicant, the European Commission violated the applicant’s rights of defence by failing to (i) provide any or any adequate reasoning to support the finding of a single and continuous infringement on all routes; (ii) define the nature and scope of the alleged infringement(s) with the particularity required by law; (iii) correct the inherent contradiction between a single and continuous infringement and four separate infringements that led to the annulment of Commission Decision C (2010) 7694 final of 9 November 2010, these being sufficient grounds for the annulment of the Decision in its entirety.

| 3. | Third plea in law, alleging a manifest error of assessment and a manifest error of law relating to the non-ability of non-EU/EEA carriers to operate on intra-European routes.
  The applicant puts forward that the European Commission (i) wrongly found in Articles 1(1) and 1(4) of the contested decision that the applicant had participated in an infringement or infringements on routes within the EEA and between airports within the EU and airports in Switzerland on which it had no legal ability to provide airfreight services; (ii) overlooked or misunderstood the international and EU legal regimes governing aviation traffic rights; (iii) wrongly applied the relevant case law in finding that there were no ‘insurmountable barriers’ to the applicant offering services on intra-European routes and thus wrongly identifying the applicant as a potential competitor on those routes. According to the applicant, each and all comprise manifest errors of assessment and manifest errors of law, and individually or collectively provide sufficient grounds for the annulment in its entirety of the contested decision in its entirety, or, in the alternative of Articles 1(1) and 1(4) of that decision. |
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3.

Third plea in law, alleging a manifest error of assessment and a manifest error of law relating to the non-ability of non-EU/EEA carriers to operate on intra-European routes.

The applicant puts forward that the European Commission (i) wrongly found in Articles 1(1) and 1(4) of the contested decision that the applicant had participated in an infringement or infringements on routes within the EEA and between airports within the EU and airports in Switzerland on which it had no legal ability to provide airfreight services; (ii) overlooked or misunderstood the international and EU legal regimes governing aviation traffic rights; (iii) wrongly applied the relevant case law in finding that there were no ‘insurmountable barriers’ to the applicant offering services on intra-European routes and thus wrongly identifying the applicant as a potential competitor on those routes. According to the applicant, each and all comprise manifest errors of assessment and manifest errors of law, and individually or collectively provide sufficient grounds for the annulment in its entirety of the contested decision in its entirety, or, in the alternative of Articles 1(1) and 1(4) of that decision.

| 4. | Fourth plea in law, alleging a manifest error of law and fact in relation to jurisdiction.
  The applicant puts forward that the contested decision is vitiated by manifest errors of law and fact relating to (i) the wrongful reliance on entirely lawful acts on third country routes to prove or constitute an infringement on intra-European routes which infringement is impossible of commission (grounds for annulment of the contested decision in its entirety); (ii) wrongful assertion of jurisdiction over supposed collusion on ‘inbound’ traffic on third country routes (ground for annulment of the contested decision in its entirety or in the alternative of Articles 1(2) and 1(3)). |
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4.

Fourth plea in law, alleging a manifest error of law and fact in relation to jurisdiction.

The applicant puts forward that the contested decision is vitiated by manifest errors of law and fact relating to (i) the wrongful reliance on entirely lawful acts on third country routes to prove or constitute an infringement on intra-European routes which infringement is impossible of commission (grounds for annulment of the contested decision in its entirety); (ii) wrongful assertion of jurisdiction over supposed collusion on ‘inbound’ traffic on third country routes (ground for annulment of the contested decision in its entirety or in the alternative of Articles 1(2) and 1(3)).

| 5. | Fifth plea in law, alleging a manifest error of assessment in relation to the evidence relied on against the applicant.
  According to the applicant, the European Commission: (i) failed properly to apply the law relating to single and continuous infringement as regards evidence; (ii) failed to establish a reliable evidential basis and to prove the facts against the applicant to the requisite legal standard; and (iii) wrongly refused to accept the applicant’s withdrawal of its misconceived leniency application and failed to consider the effect of that withdrawal on the evidence relied on against the applicant, these being sufficient grounds for the annulment of the contested decision in its entirety. |
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5.

Fifth plea in law, alleging a manifest error of assessment in relation to the evidence relied on against the applicant.

According to the applicant, the European Commission: (i) failed properly to apply the law relating to single and continuous infringement as regards evidence; (ii) failed to establish a reliable evidential basis and to prove the facts against the applicant to the requisite legal standard; and (iii) wrongly refused to accept the applicant’s withdrawal of its misconceived leniency application and failed to consider the effect of that withdrawal on the evidence relied on against the applicant, these being sufficient grounds for the annulment of the contested decision in its entirety.

| 6. | Sixth plea in law, in accordance with the First, Second, Third, Fourth and Fifth Pleas in Law, the applicant requests the Court to cancel the fine imposed by Article 3 or in the alternative substantially reduce the fine pursuant to its unlimited jurisdiction under Article 261 TFEU, Article 31 of Regulation 1/2003 and established case law. |
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6.

Sixth plea in law, in accordance with the First, Second, Third, Fourth and Fifth Pleas in Law, the applicant requests the Court to cancel the fine imposed by Article 3 or in the alternative substantially reduce the fine pursuant to its unlimited jurisdiction under Article 261 TFEU, Article 31 of Regulation 1/2003 and established case law.

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