Judgment;Information — ECLI:EU:T:2022:177
Date: 2022-03-30
Language of the case: English
Court formation: Fourth Chamber, Extended Composition
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment - unfounded;Action for annulment - successful

summary of the pleas in law relied on. That information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any further information. In order to guarantee legal certainty and sound administration of justice it is necessary, for an action to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly, in the application itself (orders of 28 April 1993, De Hoe v Commission, T‑85/92, EU:T:1993:39, paragraph 20, and of 21 May 1999, Asia Motor France and Others v Commission, T‑154/98, EU:T:1999:109, paragraph 49). 392 It is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (judgment of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 94). 393 It should be noted that this part of the plea consists, in essence, of two sections. The first consists of a lengthy account of the principles which the applicant considers to govern the taking of evidence and the use of the concept of a single and continuous infringement. The second consists of a succinct demonstration of how the Commission, according to the applicant, infringed those principles in the contested decision. 394 It is true that, as the Commission observes, the applicant has failed to identify specifically in the application the passages of the contested decision which it considers to be vitiated by an infringement of those principles. It is nevertheless apparent from the application that, as the applicant confirmed in the reply, its arguments relate mainly to the assessments set out in recitals 107 to 112 and 862 to 902 of the contested decision. It follows that, in so far as it relates to those recitals, this part of the plea complies with the requirements of the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure. 395 It does not comply, however, in so far as the applicant claims that it is ‘difficult, if not impossible, to identify specific passages of [the contested decision] as deficient when the entire analysis is superficial’. By failing to describe those alleged deficiencies with a sufficient degree of precision or, at the very least, to include in its pleadings the information necessary to identify them, the applicant has deprived the Court of any opportunity to examine them and the Commission of the opportunity to prepare its defence in full knowledge of the facts. 396 In those circumstances, the Court must confine its examination of the merits of this part of the plea to the assessments in recitals 107 to 112 and 862 to 902 of the contested decision, since otherwise it would be required to seek and identify for itself in the file the deficiencies on which the applicant might have sought to rely or even to reconstruct this part of the plea, giving it a scope which it did not have in the applicant’s mind, and would thus infringe the principle that the subject matter of an action is delimited by the parties, as well as the Commission’s rights of defence (see, to that effect, judgment of 2 April 2019, Fleig v EEAS, T‑492/17, not published, EU:T:2019:211, paragraph 44). (2) Substance 397 It should be observed that this part of the plea raises, in essence, three separate complaints, which it is for the Court to examine in turn. Those complaints are based on (i) the incorrect inclusion within the scope of the single and continuous infringement of ‘local responses to local conditions’ and contacts within industry bodies outside the EEA, (ii) the Commission’s alleged failure to distinguish between the conduct of the participants in the ‘real cartel’ and that of the other incriminated carriers, and (iii) the Commission’s alleged failure to examine the credibility of the various leniency statements. (i) The incorrect inclusion within the scope of the single and continuous infringement of ‘local responses to local conditions’ and contacts within industry bodies outside the EEA 398 As a preliminary point, it should be observed that, as the parties agree, the existence of a ‘central coordination mechanism’ is not a factor which must be demonstrated in order to prove the existence of the single and continuous infringement or to establish that both contacts at head-office level and local contacts fall within its scope. 399 When determining whether there has been a single infringement and an overall plan, the fact that the various actions of the undertakings form part of an ‘overall plan’, because their identical object distorts competition within the internal market, is decisive (see, to that effect, judgment of 13 September 2013, Total Raffinage Marketing v Commission, T‑566/08, EU:T:2013:423, paragraphs 265 and 266 and the case-law cited). 400 In the present case, in recitals 872 to 883 of the contested decision, the Commission relied on six factors to conclude that the elements relating to the FSC, the SSC and the refusal to pay commission all formed part of a single infringement. When examining one of the factors at issue, namely the single anticompetitive aim, in recital 876 of that decision, the Commission indicated the following: ‘While in some cases coordination of the FSC and the SSC took place at local level and may have given rise to local variations regarding the amount and timing of surcharges, the object remained the same, namely to eliminate competition among carriers with respect to those surcharges …’. 401 It is to no avail that the applicant argues that the local contacts referred to in the contested decision are merely ‘local responses to local conditions’. 402 As is apparent from paragraphs 137, 139 to 147, 317 and 318 above, the surcharges and the refusal to pay commission were measures of general application which were intended to be applied on all routes, on a worldwide basis and application of which was carried out in the context of a multi-level system, both central and local, described in recitals 109, 110, 111, 876, 889 and 1046 of the contested decision, as well as in footnote 1323 thereto. It is thus apparent from those recitals and from that footnote that the local contacts were intended to implement, at local level and often via local associations of carrier representatives, the guidelines laid down at head-office level. 403 As the Commission stated in footnote 1323 to the contested decision, the local contacts indeed took account of ‘the local market conditions or regulations’. Those contacts were not, however, purely prompted, encouraged or required by local regulations and did not relate exclusively to legitimate business issues or local issues. First, local staff received instructions from their head office regarding the implementation of the surcharges and reported to it (see, for example, recitals 171, 226, 233, 284, 381, 584 and 594). Local staff were, moreover, constrained by the decisions taken at head-office level. Thus, in recital 237 of the contested decision, reference is made to an internal email in which a Qantas employee reported that almost every carrier in Hong Kong had indicated their intention to follow CPA, but that Qantas and several of the incriminated carriers had expressed that they had to seek instructions from their head office before doing the same. In recital 295 of the contested decision, reference is made to the minutes of the BAR CSC meeting on 23 January 2003 in Singapore, which indicate that ‘member carriers commented that the fuel index has increased, but they have not received any instruction from their head offices to increase the [FSC]’. Similarly, in recital 414 of the contested decision, reference is made to an email from the local CPA manager in Belgium, from which it is apparent that SIA ‘claimed initially that [it would also increase the FSC on 1 October 2004] but then were recalled by [its head office] to go for [4 October 2004]’, which had previously been the subject of several contacts at head-office level (recitals 406, 410 and 411). 404 Second, it is apparent from the contested decision that coordination at local level often followed immediately on from announcements made at head-office level. By way of illustration, following Lufthansa’s announcement regarding the introduction of the FSC on 28 December 1999 (recital 138), the matter was addressed in Hong Kong on 10, 13 and 19 January 2000 (recitals 147 to 149) and India in the same month (recitals 151 and 152). The same is true of Lufthansa’s announcement of 17 February 2003 (recital 274), followed on the same day by contacts in Canada (recital 291) and Thailand (recital 298), and in Singapore on the following day (recital 296). That is also the case for Lufthansa’s announcement of 21 September 2004 (recitals 409 to 411), followed on the same day by contacts in Hong Kong (recital 431) and in Switzerland on 23 and 24 September 2004 (recitals 426 and 427). 405 It follows that the applicant has failed to demonstrate that the local contacts did not, as a matter of principle, form part of the same ‘overall plan’ as the other contacts at issue, because their identical object distorts competition in the internal market. In so far as the applicant disputes the inclusion of specific local contacts within the scope of the single and continuous infringement, its arguments will be examined in connection with the second part of the present plea. 406 As regards the contacts within ‘legitimate industry bodies’ outside the EEA, it must be observed that the applicant does not explain, in connection with this part of the plea, why it considers that those contacts were ‘entirely lawful’. If that argument must be understood as meaning that those contacts related exclusively to routes which allegedly fell outside the Commission’s jurisdiction, it must be observed that it has already been examined and rejected above, in connection with the first part of the fourth plea. 407 If that argument must be understood as meaning that the holding of meetings or discussions within a ‘legitimate industry body’ is such as to affect the assessment of its lawfulness in the light of Article 101 TFEU, it must be stated that the applicant is mistaken. It should be borne in mind that, according to its very wording, Article 101 TFEU applies to agreements between undertakings, concerted practices and decisions of associations of undertakings. The legal framework within which such agreements are concluded, such concerted practices occur and such decisions are taken, and the classification given to that framework by the various national legal systems, are irrelevant as far as the applicability of the EU rules on competition, in particular Article 101 TFEU, are concerned (judgment of 19 February 2002, Wouters and Others, C‑309/99, EU:C:2002:98, paragraph 66). 408 If, lastly, the present argument must be understood as meaning that the contacts which took place within ‘legitimate industry bodies’ outside the EEA had no anticompetitive object or did not form part of the single and continuous infringement, it must be stated that it overlaps with the second part of the present plea and will be examined in that context. 409 It follows that the applicant has failed to demonstrate that the contacts within industry bodies outside the EEA did not, as a matter of principle, form part of the same ‘overall plan’ as the other contacts at issue, because their identical object distorts competition in the internal market. In so far as the applicant disputes the inclusion of specific local contacts within the scope of the single and continuous infringement, its arguments will be examined in connection with the second part of the present plea. 410 The present complaint must therefore be rejected. (ii) The Commission’s alleged failure to distinguish between the conduct of the participants in the ‘real cartel’ and that of the other incriminated carriers 411 For the purposes of applying Article 101(1) TFEU, it is sufficient that the object of an agreement or concerted practice should be to restrict, prevent or distort competition irrespective of the actual effects of that agreement or concerted practice (see paragraphs 234 and 235 above). Consequently, in the case of agreements or concerted practices reached at meetings of competing undertakings, that provision is infringed where those meetings have such an object and are thus intended to organise artificially the operation of the market. In such a case, the liability of a particular undertaking in respect of the infringement is properly established where it participated in those meetings with knowledge of their object, even if it did not proceed to implement any of the measures agreed at those meetings (judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 145). 412 Thus, to prove that that undertaking participated in the infringement, it is sufficient for the Commission to show that it participated in meetings with an anticompetitive object without manifesting its opposition. It is then for that undertaking to put forward evidence to establish that its participation in those meetings was without any anticompetitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 81). 413 However, the degree or nature of that undertaking’s participation in the infringement is not relevant for the purposes of establishing its liability and must be taken into consideration only when assessing the gravity of the infringement and determining the amount of the fine (see, to that effect, judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 86 and the case-law cited). 414 The reason for this is that, having participated in such meetings without publicly distancing itself from what was discussed, that undertaking has given the other participants to believe that it subscribed to what was decided there and would comply with it. A party which tacitly approves of an unlawful initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, effectively encourages the continuation of the infringement and compromises its discovery. That complicity constitutes a passive mode of participation in the infringement which is therefore capable of rendering the undertaking liable (judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraphs 82 and 84). 415 The fact that an undertaking does not act on the outcome of those meetings is not such as to relieve it of responsibility, unless it has publicly distanced itself from what was agreed at those meetings (judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 85). 416 That case-law applies, mutatis mutandis, to the sending and receiving of electronic communications (see, to that effect, judgment of 21 January 2016, Eturas and Others, C‑74/14, EU:C:2016:42, paragraphs 46 to 49). 417 In the present case, the applicant does not dispute that the object of the single and continuous infringement was to restrict competition between carriers in relation to the application of surcharges (see, inter alia, recitals 879, 903, 909 and 1030 of the contested decision). 418 In recitals 719 and 720 of the contested decision, the Commission cited several items of evidence which, in its view, tended to indicate that the applicant had for a period of approximately six years received emails and participated in meetings the object of which related to the surcharges without ever distancing itself publicly from them or reporting the content thereof to the competent authorities. 419 Therefore, even if the applicant were correct to interpret that evidence as meaning that its role in the single and continuous infringement was purely passive, the Commission cannot be criticised for holding it liable for the single and continuous infringement in the same way as the other incriminated carriers, whose role may have been active or more significant. 420 At most, it was for the Commission, in accordance with the case-law cited in paragraph 413 above, to examine the nature and degree of the applicant’s participation in the single and continuous infringement when setting the amount of the fine. 421 That is precisely what the Commission did in recitals 1258 and 1259 of the contested decision, where it distinguished between the incriminated carriers according to their degree of participation in the single and continuous infringement when setting the amount of the fine and granted the applicant a 10% reduction in the basic amount of the fine on that basis. 422 Moreover, it must be observed that, as is apparent from recital 1247 of the contested decision, the applicant’s claim that it confined itself to a purely passive role in the cartel at issue is unfounded. It is apparent from recitals 719 and 720 of the contested decision that the applicant itself contacted other carriers as regards the FSC (recital 161) and provided other carriers with information concerning the level and methodology of its FSC (see, inter alia, recitals 145, 234, 291, 564 and 575), and concerning its SSC (recital 612). 423 In the light of the foregoing, the Commission cannot be criticised for having failed to distinguish between the conduct of the participants in an alleged ‘real cartel’ and that of the other incriminated carriers. (iii) The Commission’s alleged failure to examine the credibility of the various leniency statements 424 It is settled case-law that there is no provision or general principle of EU law that prohibits the Commission from relying, as against an incriminated undertaking, on statements made by other undertakings involved in the infringement. Such statements cannot therefore be regarded as devoid of probative value solely on the ground they were made pursuant to the Leniency Notice (see, to that effect, judgment of 16 September 2013, Nynäs Petroleum and Nynas Petróleo v Commission, T‑482/07, not published, EU:T:2013:437, paragraph 189 and the case-law cited). 425 On the contrary, where a person admits that he committed an infringement and thus admits the existence of facts going beyond those which could be directly inferred from documentary evidence, that implies, a priori, in the absence of special circumstances indicating otherwise, that that person has resolved to tell the truth (see judgment of 29 February 2016, Kühne + Nagel International and Others v Commission, T‑254/12, not published, EU:T:2016:113, paragraph 151 and the case-law cited). 426 Some caution as to the evidence provided voluntarily by the main participants in a cartel is certainly understandable, since they might tend to play down the importance of their contribution to the infringement and maximise that of others. Nonetheless, given the inherent logic of the procedure provided for in the 2002 Leniency Notice, the fact of seeking to benefit from the application of that notice in order to obtain a reduction in the fine does not necessarily create an incentive for the other participants in the cartel in question to submit distorted evidence (see judgment of 16 September 2013, Nynäs Petroleum and Nynas Petróleo v Commission, T‑482/07, not published, EU:T:2013:437, paragraph 190 and the case-law cited). 427 Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the undertaking seeking to benefit, and thereby jeopardise its chances of benefiting fully under the 2002 Leniency Notice (see judgment of 16 September 2013, Nynäs Petroleum and Nynas Petróleo v Commission, T‑482/07, not published, EU:T:2013:437, paragraph 191 and the case-law cited). 428 In recitals 1306 to 1389 of the contested decision, the Commission granted the incriminated carriers that had applied for leniency a reduction of at least 10% in the amount of the fine. In order to do so, the Commission found that those carriers had provided significant added value, strengthening its ability to prove various elements of the cartel at issue or even their own participation therein. The Commission even expressly found that the statements made by Martinair (recitals 1307 and 1310), Japan Airlines (recital 1318), AF-KLM (recital 1327), CPA (recital 1335) and Lan (recital 1343) were ‘self-incriminating’. 429 It follows that, in the absence of any indication to the contrary, the Commission was entitled to consider the leniency statements to be credible and to rely on them for the purposes of establishing the existence of the single and continuous infringement. Moreover, the applicant has failed, in this part of the plea, to adduce the slightest evidence to show that the Commission had failed to take account of indications of that kind. 430 The present complaint must be rejected, as must the present part of the plea in its entirety. (b) The second part of the plea, alleging that the Commission failed to prove, by means of credible evidence, the facts alleged against the applicant 431 The applicant submits that the Commission failed to adduce credible and sufficient evidence of the existence of the single and continuous infringement and of the applicant’s participation in it. Moreover, according to the applicant, the Commission made no assessment of the relevance or probative value of the evidence which it used, but merely listed them. 432 In the first place, as regards the existence of the single and continuous infringement, the applicant submits that the Commission relies on contacts which have no geographic coherence or relate to lawful industry association activities. It also relies on mass emails sent out unilaterally informing their recipients of surcharge increases that had already been publicly announced. Furthermore, no evidence of implementation of the FSC increase is adduced in connection with a ‘follower system’ at local level described inter alia in recital 119 of the contested decision. The applicant also complains that the Commission did not identify any ‘core’ or a ‘plan’ and relied on contacts relating to routes which, in the relevant periods, fell outside its jurisdiction. Lastly, the contested decision does not contain the reasoning which led the Commission to conclude, on the basis of the alleged body of evidence, that there was a single and continuous infringement. 433 As regards the applicant’s participation in the single and continuous infringement, it submits that, apart from the fact that the Commission distorted the content of the evidence against it, the Commission does not adduce evidence that it adhered to the ‘follower system’. Moreover, the Commission has not demonstrated, on the basis of the contacts in which the applicant participated, that it had the requisite awareness and intention to find that it participated in the single and continuous infringement. In particular, not a single contact involved the applicant’s high-level executives. Lastly, the applicant claims that no information provided in connection with its leniency application is incriminating, either with regard to itself or to the other incriminated carriers. 434 In the second place, the applicant also maintains that the documents on the basis of which the Commission established its involvement in the three elements of the single and continuous infringement prove nothing at all. In that regard, the applicant takes issue with the ‘evidential techniques’ used by the Commission, which amounted to relying on lawful conduct, in respect of which the Commission lacked jurisdiction, to prove unlawful conduct and using against the applicant documents which it nevertheless regarded as insufficient to demonstrate the liability of the non-incriminated carriers. The applicant also submits that the Commission relied on documents that could not be used in evidence against it because they were not drawn to its attention during the administrative procedure, or because the document was created by a leniency applicant in violation of the terms of the grant of leniency. It also refers to documents which the Commission misconstrued or whose subject matter the Commission misunderstood. In addition, the applicant argues that its knowledge of or participation in certain communications and meetings is unproven. Lastly, it insists on the fact that certain correspondence was sent to it without being solicited and that it did not reply to it. 435 The Commission disputes the applicant’s line of argument. (1) Admissibility of Annex A.14 436 As a preliminary point, it is necessary to rule on the plea of inadmissibility raised by the Commission – and disputed by the applicant – against Annex A.14, in so far as it allegedly contains matters of fact and law which are not indicated, at least in summary form, in the application. 437 In that regard, it should be borne in mind that, whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with Article 76(1)(d) of the Rules of Procedure, must appear in the application (judgment of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 94). 438 Furthermore, as recalled in paragraph 392 above, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function. 439 Thus, an annex to the application may be taken into consideration only in so far as it supports or supplements the arguments expressly set out by the applicant in the body of the application and in so far as it is possible for the Court to determine precisely what are the matters contained in the annex that support or supplement those arguments (see, to that effect, judgment of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 99). 440 In the present case, Annex A.14 is entitled ‘Analysis of each recital alleging evidence against [the applicant]’. That annex consists of a 238-page line of argument, set out recital by recital, intended to demonstrate that the evidence on which the recital in question is based has no probative value. 441 First of all, the application refers systematically to that annex in a footnote with the standard phrasing ‘Reference is made to the detailed analysis of the documents relied on in [recital] … at Annex A.14. …’. Each reference is made as from the first reference to the recital concerned in connection with this part of the plea. Those references do not relate specifically to an argument made in the application with regard to a recital, but to the recital as such. They invite the Court to acquaint itself with the ‘detailed analysis’ of those recitals set out in that annex, consisting of a set of arguments, in fact and in law, intended to call into question the probative value of the documents set out in those recitals. 442 Thus, the applicant fails to link the references made to Annex A.14 to an argument expressly set out in the body of the application. In addition, the references themselves, in so far as they refer on each occasion to a part of Annex A.14 which brings together, over several pages, all the arguments of fact and law directed against the probative value of the evidence set out in a recital of the contested decision, lead the Court to seek and identify, in that annex, the arguments on which it may consider the action to be based. 443 Lastly, Annex A.14 contains numerous arguments which are new in relation to those expressly set out in the application. By way of example, the applicant disputes, in Annex A.14.6, whether the internal emails on which recital 218 of the contested decision is based attest to a direct contact between Lufthansa and itself, relying on a passage from those emails which is not cited either in that decision or in the application. It also disputes whether those emails relate to routes from and to the EEA. Lastly, it also refers to the fact that that recital was not relied on against Lufthansa in the contested decision. However, none of those arguments is set out, in the application, in connection with recital 218. 444 In accordance with the case-law referred to in paragraphs 437 to 439 above, it is only in so far as Annex A.14 supports or supplements the arguments expressly set out by the applicant in the body of the application, and in so far as it is possible for the Court to determine precisely what are the matters contained in it that support or supplement those arguments, that it will be taken into account. (2) Substance 445 The second part of the present plea consists of two sets of arguments. One seeks to challenge the establishment, in the contested decision, of the single and continuous infringement and the applicant’s participation therein in the light of arguments calling into question, in general, the approach taken by the Commission in the contested decision. The other seeks to challenge the probative value of each of the items of evidence relied on against the applicant in recitals 719, 720 and 882 of the contested decision. Those two sets of arguments, which the Commission disputes, should be examined in turn. (i) The general criticism of the approach taken by the Commission 446 The arguments put forward by the applicant are of two kinds, concerning, first, the conditions for establishing the existence of the single and continuous infringement and, second, the conditions for establishing the applicant’s participation therein. 447 First, as regards the existence of the single and continuous infringement, it must be stated, first of all, that the assertion that the conduct within industry associations, in particular within the BAR CSC, was entirely lawful and corresponded to lobbying and representation, apart from being entirely unsubstantiated, has no factual basis. Thus, by way of example, in recital 300 of the contested decision, it is stated that a British Airways employee reported, in an internal email, on the ‘BAR India meeting 3 [March]’ concerning the FSC on perishable goods, noting that ‘it was agreed that [the] FSC will remain RS 2.25/kg’. In recital 395 of that decision, it is also stated that, at a meeting of the Singapore BAR CSC on 23 July 2004, an SAC manager asked other carriers, concerning the FSC surveys, to ‘exercise some level of cooperation for future exercises, in view of the need for greater transparency with regard to these surcharges’. As regards recital 663 of that decision, reference is made therein to an email from Martinair to the members of the Hong Kong BAR CSC in which Martinair suggested ‘as the lobbying [directed at the Hong Kong Civil Aviation Department] is effective … to hold a BAR meeting next week to discuss further steps with other carriers on how to achieve all [carriers] charge the same SSC in the market’. 448 Furthermore, in so far as the applicant complains that the Commission relied on emails informing their recipients of surcharge increases that had already been publicly announced, it must be borne in mind that the exchange of publicly available information infringes Article 101(1) TFEU where it underpins another anticompetitive arrangement (see, to that effect, judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 281). 449 However, it is apparent from recitals 118, 121, 125, 706 and 848 of the contested decision that such contacts served to underpin such an arrangement. 450 Similarly, in so far as the applicant complains that the Commission failed to identify the ‘core’ of the cartel at issue, it must be stated that, as is apparent from paragraph 413 above, the Commission was in no way required to make a distinction between the incriminated carriers on the basis of the degree of their participation in the single and continuous infringement, since that fact could be taken into consideration only when assessing the gravity of the infringement and determining the amount of the fine. Accordingly, the applicant cannot moreover rely, as it does, on the failure to identify such a core in order to dispute the existence of an overall plan pursued by the single and continuous infringement. 451 As regards the calling into question of the ‘geographic coherence’ of the evidence on which the finding of the existence of the single and continuous infringement is based, assuming that the applicant intends here to raise against the Commission the fact that it found contacts only in certain third countries, it must be stated, first, that the Commission cannot be required to adduce evidence relating to each country around the world; second, that the general and worldwide aspect of the application of the FSC and the SSC is apparent from the elements of the contested decision referred to in paragraphs 141 to 143 above; and, third, that it is apparent from paragraphs 399 to 405 above that the contested decision contains many items of evidence which, taken together, attest to the existence of a multi-level system, both central and local, involving in particular the following up at local level of instructions formulated at central level which are themselves the result of coordination at head-office level. 452 In addition, in so far as the applicant takes issue with the Commission for relying on contacts relating to routes which, in the relevant periods, fell outside its jurisdiction, reference must be made to paragraphs 302 to 322 above, by which the Court rejects such an argument. 453 As for the assertion that no evidence has been adduced of the implementation of the increase in the FSC in connection with the ‘follower system’, that assertion has no basis in fact. By way of illustration, recital 392 of the contested decision reads as follows: ‘The … local manager [of Swiss] in Japan sent an internal email on 10 June 2004 to the head office announcing that the FSC will be increased ex Japan. He states that “[I am] very [sorry] that it had not been implemented due [to the] fact that [the] national carrier did not make [any] action and other carriers were also waiting [for] someone to start. We European [carriers] had talked with [Japan Airlines] but they were not making moves! Now [Japan Airlines] had announced to [the] market and after that [everyone] started the action. We have filed to [the Ministry of Transport] with [the] increase …”’ 454 That item of evidence supports the finding of a ‘follower system’ in recital 119 of the contested decision, which, according to the Commission, was often applied concerning the implementation of the FSC at local level and consisted of the leading carrier on particular routes or in certain countries announcing the change first and then being followed by the other carriers. 455 Lastly, in so far as the applicant criticises the Commission for not setting out in the contested decision the reasoning which led it to conclude, on the basis of the body of evidence on which it relies, that there was a single and continuous infringement, it is appropriate to refer, as regards the principles, to the case-law relating to the obligation to state reasons, cited in paragraphs 155 to 157 above. 456 In the present case, after recalling, in recitals 833 to 845 of the contested decision, the principles applicable to the establishment of an agreement or a concerted practice within the meaning of Article 101 TFEU, the Commission applied those principles to the instances of conduct at issue relating, respectively, to the FSC, the SSC and the refusal to pay commission, referring to the sections and recitals of the contested decision in which the evidence supporting its reasoning is reproduced, as is apparent from recitals 846 to 859 of that decision. It concluded, in recital 860, that ‘the body of evidence as a whole prove[d] the existence of the overall scheme described in recitals [846 to 859] that [could be qualified] as an agreement and/or concerted practice between undertakings within the meaning of Article 101 of the TFEU’. It is apparent from footnote 1289 to that decision that those considerations must be understood as also covering Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement. 457 In recitals 862 to 902 of the contested decision, the Commission recalled the principles applicable to establishing a single and continuous infringement and concluded that there was a single and continuous infringement (see paragraphs 161 to 164 above). 458 In particular, in recitals 872 to 883 of the contested decision, the Commission relied on six factors to conclude that the instances of conduct at issue formed part of a single infringement. Those factors were, first, the existence of a single anticompetitive aim (recitals 872 to 876), second, the fact that those instances of conduct concerned a ‘single product/service’, namely ‘the provision of [freight] services and the pricing thereof’ (recital 877), third, the fact that the undertakings involved in the various instances of conduct at issue were the same (recital 878), fourth, the nature of the infringement (recital 879), fifth, the fact that the discussions in which the incriminated carriers participated took place in parallel (recital 880) and, sixth, the involvement of the majority of the incriminated carriers in the three elements of the single and continuous infringement (recitals 881 to 883). In recitals 885 to 898, it responded to the arguments put forward by the parties, including the applicant, during the administrative procedure. 459 It follows from the foregoing that the Commission set out to the requisite legal standard, in the contested decision, the matters of fact and of law which led it to find that there was a single and continuous infringement, thus enabling the applicant to understand them and to challenge them and the Court to review them, as is moreover demonstrated by the arguments which the applicant develops in support of the present plea. 460 Second, as regards its participation in the single and continuous infringement, the applicant claims, first of all, that the Commission ‘engaged still less’ in demonstrating that the applicant had the requisite awareness and intention to find that it participated in the single and continuous infringement. It disputes whether such awareness and such intention existed bearing in mind that none of the contacts at issue involved its high-level executives – unlike several other incriminated carriers, including those belonging to the alleged ‘core’. In that context, it also submits that proof of its membership of the ‘follower system’ has not been adduced. 461 In that regard, the Court has previously held that, for the purposes of finding an infringement of EU competition law, any anticompetitive conduct on the part of an employee is attributable to the undertaking to which he or she belongs and that undertaking is, as a matter of principle, held liable for that conduct (judgment of 21 July 2016, VM Remonts and Others, C‑542/14, EU:C:2016:578, paragraph 24). The involvement of the partners or the management staff of the undertaking is not required in order to be able to hold it liable for such conduct (see, to that effect, judgment of 7 June 1983, Musique Diffusion française and Others v Commission, 100/80 to 103/80, EU:C:1983:158, paragraph 97). 462 In the present case, it is apparent from the contested decision that the contacts made in the context of the single and continuous infringement ‘took place at various levels in the undertakings concerned’ (recital 107) and that ‘senior management in the head offices of a number of airlines were … involved in [or] informed about [competitor contacts]. In the case of the surcharges, responsible head office employees were in contact with each other when a change to the surcharge level was imminent’ (recital 110). 463 Thus, it follows from the foregoing that proof of the participation in the cartel of the applicant’s high-level executives, first, was not a prerequisite for establishing its participation in the single and continuous infringement and, second, did not reflect the mechanisms of the cartel at issue that were common to all of the incriminated carriers. As regards the latter aspect, it is apparent from paragraph 462 above that the Commission stated that senior management of ‘a number of’ carriers were involved in one way or another in that cartel, which implies that it was not the case for all of the incriminated carriers. The alleged fact that the incriminated carriers that were members of the alleged ‘core’ were represented inter alia by their ‘bosses’ is irrelevant for the purposes of establishing the applicant’s participation. As recalled in paragraph 450 above, it is capable of affecting, as the case may be, only the assessment of the gravity of the respective conduct of the incriminated carriers when determining the amount of the fine to be imposed on them. 464 As regards the alleged failure to prove that the applicant had participated in the ‘follower system’, it must be stated that that claim, which is in any event unsubstantiated, has no factual basis. Thus, it is apparent, for example, from recital 145 of the contested decision, which reproduces the content of an email of 10 January 2000, that the members of the ACCS, including the applicant, ‘agreed to apply [the] same policy as [Swiss Cargo]’ in respect of the FSC in Switzerland. Subsequently, the ACCS chairman informed its members, including the applicant, of announcements of increases in the FSC of Swiss (and sometimes other carriers), asking them about their intentions in that regard (see recitals 501, 502, 534, 561 and 562). The applicant responded to those requests. 465 Even if the present argument were to be interpreted as being directed also against the failure to state reasons, in the contested decision, concerning the applicant’s intentional contribution to the overall plan pursued by the single and continuous infringement and its proved or presumed awareness of the offending conduct of the other participants in which it did not participate directly, it must also be rejected for the same reasons as those set out in paragraphs 161 to 165 above. 466 Lastly, in so far as the applicant calls into question the incriminating nature of the documents and statements submitted by it in connection with the submission of its leniency application, it must be stated that it merely makes general and unsubstantiated assertions. 467 In the light of the foregoing, the first series of arguments put forward in support of this part of the plea must be rejected. (ii) The lack of probative value of the evidence relied on against the applicant in the contested decision 468 The applicant disputes the probative value of each of the items of evidence relied on against it in the contested decision in order to establish its participation in the elements of the single and continuous infringement relating to the FSC and the SSC, as well as its awareness of the conduct relating to the refusal to pay commission and the conduct of the other carriers in general. – The evidence relating to the FSC 469 In the first place, the applicant disputes the probative value of the contacts in respect of which the Commission states, in recital 719 of the contested decision, that they attest to a ‘repeated exchange of pricing information by email [(recitals 234 and 492)]; repeated telephone discussions [(recitals 564 and 575)]; bilateral discussions with other carriers, in particular L[ufthansa] [(recitals 161, 218, 231, 249, 272, 274, 279, 283, 291, 303, 346, 358, 411, 446, 450, 482, 495, 555, 564 and 575)]’. 470 First, as regards the contacts referred to in recitals 234 and 492, the applicant’s arguments, put forward elsewhere in support of the present claim for annulment and already rejected by the Court, which allege, on the one hand, that the contact referred to in recital 234 concerned routes which, in the relevant periods, fell outside the Commission’s jurisdiction (see paragraphs 302 to 322 above) and, on the other, that the applicant did not react to that contact (see paragraphs 418 and 419 above), must be rejected. Similarly, the fact that the applicant, which acknowledges that recital 492 ‘could only relate to [freight] services between EU airports’, did not operate on those routes has no bearing on the probative value of the contacts referred to in that recital (see paragraph 311 above). 471 The fact that the contacts referred to in recitals 234 and 492 of the contested decision involved other carriers which were not held liable for the single and continuous infringement is irrelevant. It must be borne in mind that, as is apparent from recital 845 of the contested decision, it is not necessary for every item of evidence produced by the Commission to support the firm conviction that each element of the infringement was committed. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, and whose various elements are able to reinforce each other, meets that requirement (see judgment of 16 November 2011, Sachsa Verpackung v Commission, T‑79/06, not published, EU:T:2011:674, paragraph 60 and the case-law cited). 472 The Commission was therefore fully entitled to state, in recital 716 of the contested decision, that it ‘[did] not necessarily hold every recital … and every single item of evidence therein to be of equal value’ and that ‘the recitals to which reference [was] made [formed] part of the overall body of evidence [it relied] on and [had] to be evaluated in this context’. 473 It has not been shown that a body of evidence was available to the Commission against the carriers in question in the contacts at issue that was equivalent to that which it had against the applicant. 474 Lastly, the claim that the chain of emails referred to in recital 492 of the contested decision did not concern freight or an exchange of information on freight rates remains to be examined. It is apparent from that recital that the chain of emails concerned the fare offer of a small airline which did not charge the FSC. Several of the carriers involved in the chain of emails described the advertisement of the offer on the website in question as ‘misuse’. The reference, in recital 492, to the contact made by one of the carriers denouncing that misuse with that airline and to the fact that that airline was ‘sent away’ confirms that the ‘misuse’ referred to did indeed relate to that airline’s offer and not to the ‘value of an internet web portal’, as the applicant claims. The applicant’s claim, which is in any event unsubstantiated, thus has no factual basis. 475 Second, as regards the contacts referred to in recitals 564 and 575, the applicant submits, first, that one of the emails referred to in the first of those recitals and the contact underpinning the second of those recitals cannot be relied on against it in so far as it was not in a position to acquaint itself with them during the administrative procedure. When questioned in the context of the measures of organisation of procedure, the Commission stated, however, that all the emails referred to in recital 564 were in the file to which the applicant had access during the administrative procedure and produced the documents in question (Annex F.4), without being contradicted by the applicant. As regards recital 575, while the email referred to therein is not included in the file, Lufthansa’s leniency statement describing it was by contrast accessible to the applicant, and the contested decision, in that recital, refers only to the latter document. Consequently, the applicant cannot maintain that the contacts referred to in recitals 564 and 575 could not be relied on against it. 476 In so far as the applicant also claims that the contact referred to in recital 575 could not be relied on against it, on the ground that the Commission could not both attribute some probative value to that contact and, at the same time, refrain from withdrawing Lufthansa’s immunity from fines, in so far as that contact attests to Lufthansa’s continued participation in the single and continuous infringement in breach of the conditions laid down in point 11(b) of the 2002 Leniency Notice, it must be noted that the applicant is mistaken. 477 In that regard, it should be noted that the Court has previously held that an undertaking which decides to submit a statement with a view to obtaining a reduction in the amount of the fine is aware of the fact that although a reduction will be granted to it only if, in the Commission’s opinion, the conditions for a reduction referred to in the notice are satisfied, the statement will in any event form part of the file and may be used in evidence (judgment of 12 December 2012, Novácke chemické závody v Commission, T‑352/09, EU:T:2012:673, paragraph 111). 478 Admittedly, in reaching that conclusion, the Court relied on point 31 of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the 2006 Leniency Notice’), which replaced the 2002 Leniency Notice and provides that ‘any statement made vis-à-vis the Commission in relation to this notice, forms part of the Commission’s file and can thus be used in evidence’. 479 However, it is apparent from point 37 of the 2006 Leniency Notice that point 31 of that notice is applicable to leniency applications pending at the time that notice entered into force (see, to that effect, judgment of 12 December 2012, Novácke chemické závody v Commission, T‑352/09, EU:T:2012:673, paragraphs 27 and 111). That is the case with the application submitted by Lufthansa to the Commission on 7 December 2005. That application was still pending on 8 December 2006, the date on which the notice in question entered into force. 480 Moreover, according to point 33 of the 2002 Leniency Notice, ‘any written statement made vis-à-vis the Commission in relation to this notice, forms part of the Commission’s file’. Accordingly, such a statement may be used as evidence by the Commission. The wording of point 31 of the 2006 Leniency Notice thus does no more than explain the consequences which necessarily follow from keeping that statement in the file. 481 The foregoing considerations apply equally in the case of an application for immunity from fines, since the abovementioned points of the 2002 and 2006 Leniency Notices apply without distinction to all applications made under the Commission’s leniency programme. 482 In the light of the foregoing, it must be held that Lufthansa’s failure to comply with the condition laid down in point 11(b) of the 2002 Leniency Notice, even if it were proved, is not such as to deprive the Commission of the possibility of using the written statements made by Lufthansa in connection with its leniency application. 483 Lastly, as regards the scope of the contacts referred to in recitals 564 and 575 of the contested decision and disputed by the applicant, it is apparent from one of the emails referred to in the first of those recitals that Lufthansa ‘received confirmation that [the applicant] would follow its methodology [as regards the FSC] until the end of 2005. [A (Lufthansa)] recalls that he spoke to [B (the applicant)] on this point’. Accordingly, that email establishes the existence of contacts between Lufthansa and the applicant and confirms the intention expressed by Lufthansa, in the other email referred to in recital 564 and which is earlier by a few days, that the latter will ‘call in to [the applicant] to see if [it is applying its FSC methodology] or [if it is] “adjusting” to the AF/KL[M] level’. As regards recital 575 and in so far as the applicant merely claims that it is based only on a ‘lawyer narrative’, it should be noted that, for the reasons set out in paragraphs 424 to 430 above, the Commission was entitled to rely on that statement, which establishes the existence of an exchange of information concerning the FSC between A and B, and the applicant has not put forward any circumstances capable of casting doubt on its credibility. 484 Third, as regards the contacts referred to in recitals 161, 218, 231, 249, 272, 274, 279, 283, 291, 303, 346, 358, 411, 446, 450, 482, 495, 555, 564 and 575, cited in footnote 942 to the contested decision, the applicant claims, first of all, that 10 of those contacts (recitals 161, 218, 231, 249, 272, 274, 279, 283, 291 and 303) are devoid of probative value in so far as they relate to routes which, in the relevant periods, fell outside the Commission’s jurisdiction. That argument must be rejected on the same grounds as those set out in paragraphs 302 to 322 above. 485 The applicant adds, without substantiating its arguments, that the contacts referred to in recitals 231 and 283 of the contested decision concerned only routes between the United States and Canada. Given that the surcharges were found in recital 889 of that decision to be generally applicable and failing any evidence to the contrary, it cannot be held, solely on the basis of the applicant’s assertion, that EEA routes were excluded from the contacts at issue. 486 In so far as the applicant claims, in addition, that the emails referred to in recitals 274 and 279 of the contested decision must be excluded from the body of evidence on the ground, first, that it was merely a passive recipient of those emails and, second, that those emails were addressed to other carriers which were not held liable for the single and continuous infringement, it must be stated that the applicant is mistaken, for the reasons set out in paragraphs 411 to 419 and paragraphs 471 to 473 above, respectively. 487 Furthermore, it is to no avail that the applicant relies on the public nature of the information disseminated in the emails referred to in recitals 274 and 279 of the contested decision. First, it is apparent from recitals 118, 121, 125, 706 and 848 of the contested decision that those emails served to underpin an anticompetitive arrangement, in accordance with the case-law set out in paragraph 448 above. That is confirmed by recital 482 of the contested decision, in which the Commission cited the reply of another carrier to a communication from Lufthansa of the same type as that cited in recitals 274 and 279. In that reply, that carrier informed Lufthansa that ‘we have instructed our offices to implement the increase accordingly’. Second, it should be observed that, in those emails, Lufthansa did not merely communicate publicly available information, but, on the contrary, sent collective emails, thus revealing to all the recipients the identity of the carriers concerned. 488 Next, in so far as the applicant raises the same arguments as those examined in paragraphs 486 and 487 above in relation to the contacts referred to in recitals 346, 411, 446, 450, 482 and 495 of the contested decision, they must be rejected on the same grounds. At most, it can be found, as the applicant notes, that they are not ‘bilateral discussions’, as stated in recital 719 of the contested decision, but emails sent by Lufthansa to a large number of recipients. That fact cannot, however, affect their probative value. 489 Lastly, as regards the contacts referred to in recitals 358, 555, 564 and 575 of the contested decision, it must first be noted that the Court has already ruled, in paragraphs 475 to 483 above, on the probative value of the contacts referred to in recitals 564 and 575, and the applicant does not put forward any new arguments in that regard in this part of its pleadings. Next, in so far as the applicant maintains that the contact referred to in recital 358 cannot be taken into account on the ground that it was ‘an unsolicited email from [Lufthansa] attaching a public announcement to which [it] did not respond’, it should be borne in mind, first, that a passive mode of participation in the single and continuous infringement is capable of rendering the applicant liable (see paragraphs 411 to 419 above) and, second, that it is apparent from the contested decision that the dissemination by Lufthansa of publicly available information to other carriers served to underpin the anticompetitive arrangement in question (see paragraph 487 above). 490 Lastly, as regards the line of argument directed against the probative value of the contact referred to in recital 555, based on the fact that that contact related exclusively to routes between Switzerland and Canada, which fall outside the Commission’s jurisdiction, it must be stated that nothing in the description of that contact in recital 555 allows such a conclusion to be drawn. The argument, also put forward by the applicant, that it has not been proved that it was aware of that contact, namely an internal email sent by another carrier, is irrelevant, since the Commission is entitled to rely on indirect evidence of anticompetitive contacts, such as the email at issue, in which a carrier reports internally on a contact made with another carrier. 491 In the second place, the applicant disputes the probative value of the contacts in respect of which the Commission states, in recital 719 of the contested decision, that they attest to ‘participation in multilateral meetings involving numerous carriers [(recitals 173, 174 and 292)]’. 492 As regards the contacts referred to in recitals 173 and 174 of the contested decision, the Court must reject the applicant’s argument that those contacts relate to routes which, in the relevant periods, fell outside the Commission’s jurisdiction – a claim which has not, moreover, been established (see paragraphs 309 and 310 above). As regards the fact that other carriers which were not held liable for the single and continuous infringement also participated in those contacts, it must be rejected as irrelevant, as is apparent from paragraphs 471 to 473 above. 493 As regards the contact referred to in recital 292 of the contested decision, the applicant repeats the same arguments alleging, on the one hand, that that contact relates to routes which, in the relevant periods, fell outside the Commission’s jurisdiction and, on the other, that another carrier which was not held liable for the single and continuous infringement also participated in that contact. Those arguments must be rejected for the same reasons. 494 In the third place, the applicant disputes the probative value of the contacts in respect of which the Commission states, in recital 719 of the contested decision, that they attest to its ‘participation in the email correspondence concerning ACCS members’ intended action and future announcements concerning the FSC [(recitals 145, 182, 255, 501, 502, 534, 535, 561 and 562)]’. 495 The applicant again merely submits, on the one hand, that those contacts relate to routes which fell outside the Commission’s jurisdiction and, on the other, that other carriers which were not held liable for the single and continuous infringement also participated in those contacts. Those arguments must be rejected for the reasons set out, respectively, in paragraphs 302 to 322 and in paragraphs 471 to 473 above. Moreover, the applicant’s claim that the contacts at issue concerned only Canada-Switzerland routes is in no way substantiated, the fact that it operated only on the latter category of routes and not on EU-Switzerland routes being entirely irrelevant in that regard, for the reasons set out in paragraph 311 above. 496 In the fourth place, the applicant disputes the probative value of the contacts in respect of which the Commission states, in recital 719 of the contested decision, that they attest to ‘discussions and agreements about raising the FSC level and new trigger points within BAR CSC meetings in Hong Kong [(recitals 394 and 503)]’. 497 As regards the arguments directed against the probative value of the contact referred to in recital 394, none can succeed, whether the argument was based on the fact that other carriers which were not held liable for the single and continuous infringement also participated in that contact (see paragraphs 471 to 473 above), that the applicant did not respond to the email forming the contact at issue (see paragraphs 411 to 419 above), that it did not operate on certain categories of routes covered by that contact (see paragraph 311 above) or that that contact took place within a ‘legitimate industry body whose proceedings were totally transparent’ (see paragraph 407 above). Lastly, the assertion that that contact was ‘entirely anodyne … as far as [the applicant] is concerned’ is wholly unsubstantiated. 498 By contrast, it is apparent from the contact referred to in recital 503 of the contested decision that the applicant was not among the participants in the BAR CSC meeting on 11 July 2005, which the Commission acknowledges before the Court. Consequently, the contact referred to in recital 503 has, in the present case, probative value only in so far as it contributes to establishing that the BAR CSC served as a framework for discussions regarding the FSC level. 499 It follows from the foregoing that, of the evidence on which the Commission relied in recital 719 of the contested decision in order to establish the applicant’s participation in the element of the single and continuous infringement relating to the FSC, only the probative value of the contact referred to in recital 503 must be called into question. However, in so far as, first, 35 contacts may still be relied upon against the applicant in respect of the FSC and, second, the period and territory covered by the contact referred to in recital 503 are also covered by the contacts referred to in recitals 482, 495, 501, 502 and in recital 394, respectively, it must be held that the findings set out in paragraph 498 regarding recital 503 are not such as to call into question the finding that the applicant participated in the element relating to the FSC. 500 In the light of all of the foregoing, it must be held that the applicant has not shown that the Commission erred in finding that it participated in the element of the single and continuous infringement relating to the FSC. – The evidence relating to the SSC 501 The applicant disputes the probative value of the contacts in respect of which the Commission states, in recital 720 of the contested decision, that they attest to ‘bilateral information exchanges with [British Airways and another carrier] [(recitals 591, 612 and 636)] and multilateral email exchanges [(recitals 585, 594 and 609)]; multilateral meetings [in] Hong Kong and in Germany [(recitals 634, 660 and 665)]’. 502 As regards the applicant’s line of argument directed against the contacts referred to in recitals 585, 591, 594, 609, 612, 636, 660 and 665 of the contested decision, alleging, first, that it did not operate on certain categories of routes covered by those contacts, second, that other carriers which were not held liable for the single and continuous infringement also participated in those contacts and, third, that those contacts concerned routes which, in the relevant periods, fell outside the Commission’s jurisdiction, it must be rejected for reasons similar to those set out in paragraphs 311, 471 to 473 and 302 to 322 above, respectively. Likewise, the fact that it did not reply to the emails referred to in recitals 594, 609, 660 and 665 does not mean that those emails cannot be relied upon against it (see paragraphs 411 to 419 above). Moreover, even if the applicant, which refers to other arguments set out in the application, intends to rely, as regards the meetings held within the BAR CSC in Hong Kong (recitals 660 and 665), on the ‘legitimate’ nature of the context in which they took place, it is sufficient to refer to the reasons set out in paragraph 407 above. 503 Next, it should be noted that, contrary to the applicant’s unsubstantiated assertion, there is nothing in the description in recitals 591 and 636 of the internal emails of the carrier at issue to support the inference that the exchanges thus reported were confined solely to the routes on which that carrier operated. 504 Furthermore, in so far as the applicant claims that recitals 591 and 636 were not relied on against other incriminated carriers even though they were mentioned in the contacts referred to therein, it must be borne in mind that the Court of Justice has repeatedly held that an undertaking on which a fine has been imposed for its participation in a cartel, in breach of the competition rules, cannot request the annulment or reduction of that fine, on the ground that another participant in the same cartel was not penalised in respect of a part, or all, of its participation in that cartel (see judgment of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission, C‑615/15 P, not published, EU:C:2017:190, paragraph 38 and the case-law cited). That principle extends to a situation in which an undertaking, although not seeking to have the fine cancelled or reduced, is nevertheless liable to obtain an advantage from relying on that difference in treatment. 505 In the present case, the applicant relies on the fact that the two recitals at issue, which were relied on against it in the contested decision, were not relied on against several other incriminated carriers, and thereby seeks to have those recitals omitted from the body of evidence relied on against it. It follows that, in accordance with the principles referred to in paragraph 504 above, the present argument cannot succeed. 506 Lastly, in so far as the applicant disputes the probative value of recital 634 of the contested decision, it should be noted that that recital states as follows: ‘[C (one of the other carriers)] forwarded [a] newsflash to [D (Lan Cargo)] on 10 February 2006. [D] then forwarded the email internally on 11 February 2006 stating that [that first carrier’s] newsletter concerning the SSC following [Lufthansa] was attached. He added that there would be a meeting on Monday with [that first carrier], [the applicant], [another carrier], etc. in the office of [that first carrier].’ 507 In that regard, the applicant’s argument that it was not aware of those emails or was not copied into them must be rejected at the outset. As stated in paragraph 490 above, the Commission is entitled to rely on indirect evidence of anticompetitive contacts, such as the second email at issue, in which a carrier reports internally on a contact with another carrier. 508 Similarly, the applicant’s claim that it did not participate in the meeting referred to in recital 634 of the contested decision is in no way substantiated, and in any event it can be inferred from the content of the second email at issue, produced by the Commission as an annex to its defence, that the holding of the meeting and the participation of the carriers whose presence was announced were certain from the point of view of the author of the email. The latter states that that meeting ‘will take place’ on the day, at the place and with the participants announced. In any event, the fact that the carriers in question intended to deal with the subject of the SSC with the applicant in itself constitutes an indication that the applicant participated in the element of the single and continuous infringement relating to the SSC (see, to that effect, judgment of 29 June 2012, GDF Suez v Commission, T‑370/09, EU:T:2012:333, paragraph 226). 509 As regards the object of the meeting, the applicant has failed to substantiate its assertion that ‘the context shows the object of the meeting was not to agree prices’. Moreover, as the Commission correctly notes, the reference to the meeting is found between two sentences referring to a ‘security surcharge’, which the applicant does not allege to be different to the SSC, while no other possible object of the meeting is apparent from that email. 510 Lastly, it is true, as the applicant observes, that recital 634 of the contested decision concerns contacts between representatives of carriers the head offices of which are all established outside the EEA, and thus a fortiori outside Germany. In the absence of other evidence to that effect, it cannot therefore be inferred that the contacts at issue reveal head-office involvement, as indicated in the wording of Section 4.4.2.4 of the contested decision, in which that recital is found. That fact does not negate the probative value of the contacts at issue with regard to the applicant, but merely justifies refraining from drawing inferences as regards the involvement of the applicant’s head office in the single and continuous infringement. 511 It has thus not been shown that the Commission erred in considering that all the evidence referred to in recital 720 of the contested decision contributed to establishing the applicant’s participation in the element of the single and continuous infringement relating to the SSC. 512 As stated in paragraph 510 above, the scope of recital 634 must nevertheless be qualified, in that it cannot establish the involvement of the applicant’s head office or that of the other parties to that exchange. However, it must be noted that, among the contacts relied on against the applicant in respect of the SSC, several are described in the contested decision as revealing head-office involvement (recitals 585, 591, 594, 609 and 612), without that assessment being effectively disputed. 513 In the light of all of the foregoing, it has not been established that the Commission erred in finding that the applicant participated in the element of the single and continuous infringement relating to the SSC. – The evidence relating to the refusal to pay commission 514 The applicant disputes the probative value of the contacts in respect of which the Commission states, in recital 882 of the contested decision, that they prove that it was ‘aware of the discussions on [the refusal to pay commission] [(recitals 684, 686 and 687)]’. 515 In that regard, it should be borne in mind that the Commission bears the burden of proving that the undertaking concerned had the requisite awareness of the anticompetitive conduct planned or put into effect by the other participants in the global cartel but in which it did not participate directly (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 67). 516 To discharge that burden of proof, the Commission must adduce evidence sufficiently precise and consistent to establish that the undertaking concerned had such awareness (see, to that effect, judgment of 20 March 2002, Sigma Tecnologie v Commission, T‑28/99, EU:T:2002:76, paragraph 51). 517 The Commission is not, however, required to show that the undertaking concerned was or ought to have been familiar with the detail of the concerted practices taking place in connection with the contacts at issue in which it did not participate. Nor is it required to establish that that undertaking was or ought to have been aware of all of those contacts (see, to that effect, judgment of 14 December 2006, Raiffeisen Zentralbank Österreich and Others v Commission, T‑259/02 to T‑264/02 and T‑271/02, EU:T:2006:396, paragraph 193). 518 The undertaking concerned must therefore merely be aware of the general scope and the essential characteristics of the cartel as a whole (see judgment of 10 October 2014, Soliver v Commission, T‑68/09, EU:T:2014:867, paragraph 64 and the case-law cited). 519 In that regard, it must be specified that the mere fact that there is identity of object between an agreement in which an undertaking participated and a global cartel does not suffice for a finding that the undertaking participated in the global cartel. That is the case even where there are objective links between that agreement and the global cartel. It is only if the undertaking concerned knew or should have known when it participated in an agreement that in doing so it was joining in the global cartel that its participation in the agreement concerned can constitute the expression of its accession to that cartel (see, to that effect, judgment of 30 November 2011, Quinn Barlo and Others v Commission, T‑208/06, EU:T:2011:701, paragraphs 144 and 150 and the case-law cited). 520 In the present case, it should be noted that the Commission, in recital 882 of the contested decision, considered that the applicant could be held liable for the element of the single and continuous infringement relating to the refusal to pay commission, given that, because of its involvement in the other two elements of the single and continuous infringement, it could ‘have reasonably foreseen exchanges between the parties on such a related matter as [the refusal to pay commission] and [was] prepared to take the risk’. It states, in the same recital, that there is also evidence that the applicant was aware of the discussions relating to the refusal to pay commission, as evidenced by the contacts described in recitals 684, 686 and 687 of that decision. 521 It is in the light of the case-law principles recalled in paragraphs 515 to 518 above that it must be assessed whether the evidence relied on against the applicant by the Commission in recital 882 of the contested decision is sufficient to support the firm conviction that it had the requisite awareness of the general scope and essential characteristics of the element of the single and continuous infringement relating to the refusal to pay commission, as described in the contested decision. 522 At the outset, it must be stated that, in so far as the Commission relies, in essence, on the fact that the object of the element of the single and continuous infringement relating to the refusal to pay commission is identical to that of the other two elements of that infringement, that fact, assuming it is established, is not sufficient to demonstrate that the applicant had the requisite awareness of the first element, in accordance with the case-law recalled in paragraph 519 above. It must therefore be assessed whether, in the light of the contested scope of the contacts described in recitals 684, 686 and 687, to which reference is made in recital 882 of the contested decision, the Commission was entitled to consider that the applicant was aware of the anticompetitive activities of the other incriminated carriers concerning the refusal to pay commission. 523 In that regard, it should be borne in mind that, in Section 4.5 of the contested decision, the Commission described the concerted practices relating to the refusal to pay commission. 524 The Commission thus noted, in recital 676 of the contested decision, that, following discussions between freight forwarders on the lack of remuneration associated with the collection of surcharges and the involvement, at the end of 2004, of the International Federation of Freight Forwarders Associations (FIATA), ‘the [carriers] continued to refuse [to pay] commission on the surcharges and confirmed their relevant intentions to each other in the framework of numerous contacts’. 525 The ‘basic principles and structure of the cartel’ described in Section 4.1 of the contested decision applied, according to the Commission, to all aspects of the single and continuous infringement, including the refusal to pay commission. 526 That being borne in mind, in the first place, as regards the probative value of the contact referred to in recital 684 of the contested decision, it should be noted that that recital reads as follows: ‘[E (one of the other carriers)] forwarded an email on 8 July 2005 to [F (Lufthansa)] and [G (the applicant)] from [that first carrier’s] Italian sales agent ATC Spa concerning the claim of [freight] forwarders to pay a commission on the surcharges.’ 527 The applicant submits that this was an entirely anodyne, and moreover unsolicited, contact, in respect of which no explanation is given as to why it is not relied on against the carrier in question. Accordingly, that contact was not such as to give the applicant the requisite awareness of the element relating to the refusal to pay commission. 528 It is apparent from the email referred to in recital 684 of the contested decision that the applicant was, together with Lufthansa, the recipient of information sent by a third carrier concerning the position adopted by freight forwarders in Italy with regard to the payment of commission on surcharges. That contact, without going so far as to demonstrate a common objective of the parties to the exchange to coordinate on the payment of commission on surcharges, was such as to give the applicant awareness that other carriers were willing to exchange information in that regard. The fact that the carrier in question is not among the incriminated carriers does not alter that conclusion, for the reasons set out in paragraphs 471 to 473 above. 529 On the other hand, that contact does not in itself establish that the applicant was aware or ought to have been aware of the existence of broader coordination on the issue of the refusal to pay commission. In accordance with settled case-law (judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 47 and the case-law cited), it is nevertheless important to examine whether, together with other items of evidence, that contact could constitute a body of evidence which enabled the Commission to conclude that that was the case (see paragraphs 537 to 539 below). 530 In the second place, as regards the probative value of the contact referred to in recital 686 of the contested decision, it should be noted that that recital reads as follows: ‘[H (SAC] Manager for the United Kingdom & Ireland) sent an email on 28 December 2005 to [Lufthansa], [CPA], …, …, …, …, [Japan Airlines], [British Airways], [SAS], … and … asking them whether they also received a communiqué from DHL in Germany announcing that DHL was going to collect a charge for the collection of the surcharges from 1 January 2006. The email was forwarded internally in … and [I (Cargo Manager for Germany, the Nordic countries and Eastern Europe of the carrier in question)] replied on 3 January 2006 that “I am meeting up with [Martinair] on Thursday and [Martinair] will be giving me a letter their legal [department] sent. I also spoke to [Lufthansa Cargo] last week who will not answer officially to the QCS letter, but have said that they will not accept any such invoices. [The applicant] by the way [has] received something from DHL here locally. I will fax you their letter just now”.’ 531 The applicant claims that the exchange in question took place in connection with a legal announcement of general interest to carriers and that it shows nothing in so far as the applicant is concerned. It adds that that exchange involves several carriers that were not held liable in the contested decision. 532 It is apparent from that recital that the applicant communicated with another carrier concerning a claim received from a freight forwarder for remuneration for the collection of surcharges ‘locally’, namely in Germany. It follows that the applicant was in contact with that carrier and necessarily knew that that carrier was taking part in exchanges of information with it regarding the refusal to pay commission, and could reasonably have foreseen that that carrier was doing the same with other carriers. The fact that several carriers referred to, including that carrier, are not among the incriminated carriers does not alter that conclusion, for the reasons set out in paragraphs 471 to 473 above. On the other hand, that contact, particularly in view of its local scope, does not in itself establish that the applicant was aware or ought to have been aware of the existence of broader coordination on the issue of the refusal to pay commission. 533 In the third place, as regards the contact referred to in recital 687 of the contested decision, it should be noted that that recital reads as follows: ‘[J (CPA)] sent an internal email on 4 January 2006 concerning letters from forwarders announcing the intention to invoice the carriers for the collection of the surcharges. He stated in the email that “most managers of other carriers are still on leave as I write, although I have spoken with [SAC] and [the applicant]. [SAC] has chosen to ignore the letters. [The applicant has] forwarded on to [its head office]. Next week [Lufthansa’s] management returns from leave and I will find out what their intention is.” In a following email on 9 January 2006 [J] states that “[I] have now spoken with [Lufthansa] who are also not responding to the letters for the moment”.’ 534 It is apparent from that recital that the applicant was in contact with CPA concerning a claim from freight forwarders for remuneration for the collection of surcharges. In that regard, the applicant merely disputes the statements reproduced here, without adducing any evidence to the contrary. 535 Moreover, it is not apparent from that recital that the scope of the claims at issue was limited to a specific country. That is borne out by the involvement of carriers’ head offices which can be inferred from that recital. 536 It follows that that recital may contribute to establishing the requisite awareness that the applicant had of the element of the single and continuous infringement relating to the refusal to pay commission, from the point of view of its scope ratione personae – by including CPA – and from the point of view of its geographic scope, in so far as the issue of commission on surcharges is discussed between carriers without being limited to a specific territory. 537 It follows from the foregoing that the Commission was entitled to consider that all the evidence referred to in recital 882 of the contested decision was such as to give the applicant the requisite awareness of the essential characteristics of that element from the point of view of its scope ratione personae. The applicant was aware of the involvement of at least four carriers (CPA, Lufthansa and two other carriers) and could infer therefrom, in view also of its involvement in the elements relating to the FSC and the SSC, the complementarity of which with the refusal to pay commission is not effectively disputed, that those carriers were in contact with other carriers. 538 Similarly, the geographic scope of the element of the single and continuous infringement relating to the refusal to pay commission could reasonably be inferred by the applicant from the number of countries concerned by the information exchanges to which it was a party and from the centralised approach which can be inferred from the contact referred to in recital 687 of the contested decision. 539 On the other hand, none of the evidence referred to in recitals 684, 686 and 687 of the contested decision demonstrates that the applicant had the requisite awareness of one of the essential characteristics of the element of the single and continuous infringement relating to the refusal to pay commission, namely that the carriers observed a common discipline, adherence to which was confirmed by regular exchanges on their intentions. None of those recitals shows that the applicant was informed of the existence of such a discipline. Nor does it follow from those recitals that the applicant stated its intentions with regard to the claims for commission on surcharges – since the information in recital 687 to the effect that the matter had been forwarded on to its head office does not express any intention but merely shows that the matter is under consideration – or that the applicant’s interlocutors informed it of their intentions. 540 It follows that the Commission erred in finding that the applicant had the requisite awareness of the element of the single and continuous infringement relating to the refusal to pay commission. Consequently, Article 1(1)(a), (2)(a), (3)(a) and (4)(a) of the contested decision must be annulled in so far as it imputes to the applicant liability for the element of the single and continuous infringement relating to the refusal to pay commission. – The evidence relating to the applicant’s awareness of the conduct of the other carriers 541 The applicant disputes the probative value of the contacts referred to in recital 897 of the contested decision, in respect of which the Commission states, in recital 895, that they prove that it was ‘aware of the behaviour of other participants or could reasonably have foreseen or been aware of [it] and [was] prepared to take the risk’. 542 The applicant merely refers, in support of the present complaint, to the arguments directed against the elements relating to the FSC and the SSC, which have already been examined and rejected by the Court in connection with the present part of the plea. Accordingly, this complaint must be rejected. 543 In the light of all the foregoing, the present part of the plea must be upheld in so far as the Commission erred in finding the applicant liable for the element of the single and continuous infringement relating to the refusal to pay commission, and must be rejected as to the remainder. (c) The third part of the plea, alleging an error and an infringement of the rights of the defence as regards the Commission’s refusal to accept the withdrawal of the applicant’s leniency application 544 The applicant claims that the Commission made an error and infringed its rights of defence by refusing to grant its request to withdraw its leniency application and to return the documents which it submitted in connection with that application. It alleges, in essence, an error of assessment and an error of law, in so far as, contrary to the Commission’s contention, there is nothing in the 2002 Leniency Notice to preclude such a withdrawal, which the case-law tends to corroborate. Whether or not the leniency procedure had reached an advanced stage is irrelevant. 545 The Commission disputes the applicant’s line of argument. 546 As a preliminary point, it should be noted that the Commission does not dispute the possibility, for a leniency applicant, of manifesting its intention to cease its cooperation in connection with the leniency procedure and to waive the benefit of a reduction in the amount of any fines. However, in connection with the contested decision (see recital 104) and its reply to this part of the plea, it denied the applicant the possibility of requesting, when withdrawing its leniency application, the removal from the Commission’s file of the statements and evidence submitted in that procedure. 547 In that regard, it must be borne in mind that, according to the principles recalled in paragraphs 477 to 480 above, any statement made vis-à-vis the Commission in connection with a leniency application forms an integral part of its file, since such statements may be used as evidence by the Commission irrespective of whether the conditions for a reduction in the amount of the fine are met. 548 Furthermore, there is nothing to prevent the conclusions reached by the Court in the judgment of 12 December 2012, Novácke chemické závody v Commission (T‑352/09, EU:T:2012:673), as regards the statements made by the leniency applicant, from being extended to all the evidence provided by an undertaking in order to obtain a reduction in the amount of the fine. 549 Thus, in the judgment of 12 December 2012, Novácke chemické závody v Commission (T‑352/09, EU:T:2012:673), the Court based its conclusion that the leniency applicant’s statement could be relied on as evidence, irrespective of the outcome of its leniency application, in essence, on the voluntary nature of the cooperation provided by the undertaking wishing to obtain a reduction in the amount of the fine and on the terms of the leniency notice applicable to the facts at issue. 550 On the one hand, the evidence provided by the applicant in the present case in its leniency application, like the statement of the leniency applicant in the case that gave rise to the judgment of 12 December 2012, Novácke chemické závody v Commission (T‑352/09, EU:T:2012:673), was provided voluntarily. 551 On the other, neither the 2002 Leniency Notice nor the 2006 Leniency Notice contains provisions of such a kind as to create, for undertakings wishing to cooperate with the Commission, expectations as to what would happen to the evidence provided by those undertakings that does not, ultimately, satisfy the conditions for obtaining a reduction in the amount of the fine. The same applies to situations, such as in the present case, in which the undertaking ultimately intends to withdraw a leniency application which it has made voluntarily. That situation contrasts with the clarifications offered by those notices regarding what happens to the evidence provided in support of an application in respect of which the Commission rules out that it meets the conditions for granting conditional immunity. In such a case, the undertaking may withdraw the evidence disclosed (see, respectively, point 17 of the 2002 Leniency Notice and point 20 of the 2006 Leniency Notice). 552 Moreover, automatically removing from the file evidence provided by an undertaking which shows that it does not ultimately meet the conditions for obtaining a reduction in the amount of the fine on the date of adoption of the decision finding an infringement or that it ultimately intends to terminate its cooperation before the adoption of that decision would undermine the effectiveness of the leniency procedure. The Commission would be deprived of evidence which is by definition essential to establishing the infringement in question and the participation therein, at a stage where the possibility of making up for that lack of evidence by means of additional investigative measures would be considerably reduced, in particular on account of the risk of deterioration of the evidence. Furthermore, the success of procedures would risk being left to the goodwill of the leniency applicant, while the Commission would be hampered in effectively monitoring compliance with the conditions for granting the benefit of a reduction in the amount of the fine. 553 Consequently, the Commission did not err in taking into account, in the contested decision, the statements and evidence provided by the applicant in connection with its leniency application, the withdrawal of which was subsequently requested by the applicant. 554 In so far as the complaint alleging infringement of the rights of the defence is based on the incorrect premiss that the applicant could validly withdraw those statements and that evidence from the Commission’s file, it must also be rejected. 555 It follows from all the foregoing that the fifth plea must be rejected, with the exception of the second part, in so far as the Commission erred in finding the applicant liable for the element relating to the refusal to pay commission, which must be upheld. 556 In the light of all the foregoing, the second part of the fifth plea must be upheld in so far as the Commission erred in finding the applicant liable for the element relating to the refusal to pay commission. Consequently, Article 1(1)(a), (2)(a), (3)(a) and (4)(a) of the contested decision must be annulled in so far as it imputes to the applicant liability for the element of the single and continuous infringement relating to the refusal to pay commission. 557 It cannot, however, be held that that illegality is such as to entail the annulment of the contested decision in its entirety. Although the Commission made an error of assessment in imputing to the applicant liability for the element of the single and continuous infringement relating to the refusal to pay commission, it must be held that it has not been established in the present action that the Commission erred in finding that it had participated in the infringement at issue. 558 The other heads of claim seeking annulment must be dismissed. B. The claim for a reduction in the amount of the fine 559 The applicant claims, in essence, that the Court should draw the appropriate conclusions from the five pleas on which it relied in support of its claim for annulment by substantially reducing the amount of the fine in the exercise of its unlimited jurisdiction. In response to the Court’s measures of organisation of procedure, the applicant also requested that the Court uphold the plea raised of its own motion and exercise its unlimited jurisdiction to reduce the amount of the fine accordingly. 560 The Commission contends that this claim must be dismissed as inadmissible for want of clarity and precision. In any event, the fine imposed on the applicant is fully justified. 1. Admissibility 561 As is apparent from paragraph 391 above, the admissibility of an action is conditional on the basic matters of law and fact relied on being indicated, at least in summary form, coherently and intelligibly in the application itself. 562 It should also be borne in mind that it is only after the Court has finished reviewing the legality of the decision referred to it, in the light of the pleas in law submitted to it and of grounds which, where applicable, it has raised of its own motion, that, in the event that it does not annul the decision in full, it is to exercise its unlimited jurisdiction in order, first, to draw the appropriate conclusions from its findings with respect to the lawfulness of that decision and, secondly, to establish, according to the information which has been brought to its attention, whether it is appropriate, on the date on which it adopts its decision, to substitute its own assessment for that of the Commission, so that the amount of the fine is appropriate (see judgment of 17 December 2015, Orange Polska v Commission, T‑486/11, EU:T:2015:1002, paragraph 67 and the case-law cited). 563 By the present claim, the applicant specifically requested that the Court draw the appropriate conclusions from the illegalities alleged in support of the claim for annulment and cancel or reduce the fine accordingly. In the present case, the Court found only one illegality when examining the claim for annulment, namely that relating to the imputation to the applicant of liability for the element of the single and continuous infringement relating to the refusal to pay commission. It must therefore be considered that the applicant is requesting that the Court draw the appropriate conclusions from that illegality for the calculation of the amount of the fine. 564 It follows that, despite the brevity of the line of argument put forward in support of this claim, the essential matters of fact and law on which it is based are sufficiently clear from the application, in accordance with the requirements of the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure. 565 The present plea of inadmissibility must therefore be rejected. 2. Substance 566 In EU competition law, the review of legality is supplemented by the unlimited jurisdiction which the Courts of the European Union are afforded by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. That jurisdiction empowers the Courts of the European Union, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the amount of the fine or penalty payment imposed (see judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 63 and the case-law cited). 567 That exercise involves, in accordance with Article 23(3) of Regulation No 1/2003, taking into consideration, with respect to each undertaking sanctioned, the seriousness and duration of the infringement at issue, in compliance with the principles of, inter alia, adequate reasoning, proportionality, the individualisation of penalties and equal treatment, and without the Courts of the European Union being bound by the indicative rules defined by the Commission in its guidelines (see, to that effect, judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 90). It must, however, be pointed out that the exercise of unlimited jurisdiction provided for in Article 261 TFEU and Article 31 of Regulation No 1/2003 does not amount to a review of the Court’s own motion, and that proceedings before the Courts of the European Union are inter partes. With the exception of pleas involving matters of public policy which the Courts are required to raise of their own motion, it is therefore for the applicant to raise pleas in law against the decision at issue and to adduce evidence in support of those pleas (judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 64). 568 It is thus for the applicant to identify the impugned elements of the contested decision, to formulate grounds of challenge in that regard and to adduce evidence – direct or circumstantial – to demonstrate that its objections are well founded (judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 65). 569 In order to satisfy the requirements of Article 47 of the Charter when conducting a review in the exercise of their unlimited jurisdiction with regard to the fine, the Courts of the European Union are, for their part, bound, in the exercise of the powers conferred by Articles 261 and 263 TFEU, to examine all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement (see judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 75 and the case-law cited; judgment of 26 January 2017, Villeroy & Boch Austria v Commission, C‑626/13 P, EU:C:2017:54, paragraph 82). 570 Lastly, in order to determine the amount of the fine, it is for the Courts of the European Union to assess for themselves the circumstances of the case and the nature of the infringement in question (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 89) and to take into account all of the factual circumstances (see, to that effect, judgment of 3 September 2009, Prym and Prym Consumer v Commission, C‑534/07 P, EU:C:2009:505, paragraph 86), including, where appropriate, additional information which is not mentioned in the Commission decision imposing the fine (see, to that effect, judgments of 16 November 2000, Stora Kopparbergs Bergslags v Commission, C‑286/98 P, EU:C:2000:630, paragraph 57, and of 12 July 2011, Fuji Electric v Commission, T‑132/07, EU:T:2011:344, paragraph 209). 571 In the present case, it is for the Court, in the exercise of its unlimited jurisdiction, to determine, in the light of the arguments put forward by the parties in support of this claim, the amount of the fine which it considers most appropriate, having regard in particular to the findings made when examining the pleas raised in support of the claim for annulment and the plea raised of the Court’s own motion and taking into account all the relevant factual circumstances. 572 The Court considers that it is not appropriate, in order to determine the amount of the fine to be imposed on the applicant, to depart from the method of calculation followed by the Commission in the contested decision, which the applicant has not claimed was vitiated by illegality. Although it is for the Court, in the exercise of its unlimited jurisdiction, to assess for itself the circumstances of the case and the nature of the infringement in question in order to determine the amount of the fine, the exercise of unlimited jurisdiction cannot result, when the amount of the fines to be imposed is determined, in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement. Accordingly, the guidance which can be drawn from the 2006 Guidelines is, as a general rule, capable of guiding the Courts of the European Union in their exercise of that jurisdiction where the Commission has applied those guidelines for the purposes of calculating the fines imposed on the other undertakings penalised by the decision which those Courts are asked to examine (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 80 and the case-law cited). 573 In those circumstances, first of all, it must be observed that the total value of the sales made by the applicant in 2005 was EUR 151 513 620. That value does not include any revenue from non-EU EEA-Switzerland routes, in respect of which the Court held in paragraphs 329 to 352 above that they did not fall within the scope of the single and continuous infringement. It is apparent from the application that the applicant did not achieve any turnover on those routes during 2005. 574 Next, it should be noted that, on the grounds set out in recitals 1198 to 1212 of the contested decision and in the absence of any argument to the contrary put forward by the applicant, the single and continuous infringement merits a gravity factor of 16%. 575 As regards the additional amount, it must be borne in mind that, according to point 25 of the 2006 Guidelines, irrespective of the duration of an undertaking’s participation in the infringement, the Commission includes in the basic amount a sum of between 15 and 25% of the value of sales, in order to deter undertakings from entering into horizontal price-fixing, market-sharing and output-limitation agreements. That point states that, for the purpose of deciding the proportion of the value of sales to be considered in a given case, the Commission will have regard to a number of factors, in particular those referred in point 22 of the 2006 Guidelines. Those factors are the same which the Commission takes into account for the purpose of setting the gravity factor and include the nature of the infringement, the combined market share of all the parties concerned, the geographic scope of the infringement and whether or not the infringement has been implemented. 576 The Courts of the European Union have inferred from this that, even if the Commission does not set out a specific statement of reasons as regards the proportion of the value of sales used as the additional amount, the mere reference to the analysis of the factors used in order to assess the gravity of the infringement suffices in that respect (judgment of 15 July 2015, SLM and Ori Martin v Commission, T‑389/10 and T‑419/10, EU:T:2015:513, paragraph 264). 577 In recital 1219 of the contested decision, the Commission found that the ‘percentage to be applied for the additional amount should be 16%’ given the ‘specific circumstances of the case’ and the criteria used to determine the gravity factor. 578 It follows that, on the same grounds as those set out in recitals 1198 to 1212 of the contested decision, the Court considers that an additional amount of 16% is appropriate. 579 Furthermore, it is apparent from recitals 1213 to 1217 of the contested decision that the duration in respect of which the applicant was held liable for the single and continuous infringement amounts to five years and four months on intra-EEA routes, one year and nine months on EU-third country routes, three years and eight months on EU-Switzerland routes and eight months on non-EU EEA-third country routes. Since the Commission lawfully established the duration of the applicant’s involvement in the single and continuous infringement, it is appropriate to use multiplying factors of 54/12, 19/12, 38/12 and 8/12, respectively. 580 The basic amount of the fine must therefore be set at EUR 66 521 489. 581 Consequently, the basic amount of the fine after application of the general 50% reduction, which applies only to the basic amount in so far as it concerns non-EU EEA-third country routes and EU-third country routes (see recital 1241 of the contested decision), which the applicant has not contested and which is not inappropriate, must be set, after rounding, at EUR 33 000 000. In that regard, the Court considers it appropriate to round that basic amount down to the first two digits, unless this leads to a reduction of more than 2% of the amount before rounding, in which case that amount is rounded down to the first three digits. That method is objective, affords all the incriminated carriers which have brought an action against the contested decision the benefit of a reduction and avoids unequal treatment (see, to that effect, judgment of 27 February 2014, InnoLux v Commission, T‑91/11, EU:T:2014:92, paragraph 166). 582 Lastly, as regards the adjustments to the basic amount of the fine, it should be borne in mind that the applicant benefited from the general 15% reduction, the lawfulness or appropriateness of which it has not disputed. 583 Furthermore, in recitals 1258 and 1259 of the contested decision, the Commission granted the applicant a 10% reduction in the basic amount of the fine on the ground that it ‘operated on the periphery of the cartel, entered into a limited number of contacts with other carriers, and … did not participate in all elements of the [single and continuous] infringement’. It must, however, be borne in mind that the Commission erred in imputing to the applicant liability for the element of the single and continuous infringement relating to the refusal to pay commission and, consequently, overestimated the degree of its participation in the single and continuous infringement. It was, accordingly, inappropriate to grant the applicant a reduction of only 10% on that basis. 584 In those circumstances, in the light of the limited period during which the incriminated carriers coordinated in respect of the refusal to pay commission in comparison with the duration of the single and continuous infringement as a whole, the Court considers that a reduction of 21% on account of the applicant’s limited involvement in the single and continuous infringement is appropriate. 585 On the other hand, the Court does not consider that the exclusion of the contact described in recital 503 of the contested decision from the body of evidence (see paragraph 498 above) and the need to qualify the scope of the contact referred to in recital 634 of the contested decision justify (see paragraph 512 above) the grant of an additional reduction to the applicant by way of mitigating circumstances. Those contacts, which concern the FSC and the SSC, respectively, are among the numerous exchanges that took place at local level which the Commission relied on against the applicant, and the scope of its involvement in those exchanges, a fortiori in the elements of the single and continuous infringement relating to the FSC and the SSC, in general remains fully substantiated. 586 In addition, it must be held that the 15% leniency reduction granted to the applicant remains appropriate. 587 In the light of all the foregoing considerations, the amount of the fine imposed on the applicant must be calculated as follows: first, the basic amount is determined by applying, in view of the gravity of the single and continuous infringement, a percentage of 16% to the value of sales, then, in respect of the duration of the infringement, the multipliers set out in paragraph 579 above, and, lastly, an additional amount of 16%, resulting in an intermediate amount of EUR 66 521 489. After applying the general 50% reduction, that amount, rounded down, must be set at EUR 33 000 000. Next, after applying the general 15% reduction and an additional reduction of 21% on account of the applicant’s limited involvement in the single and continuous infringement, that amount must be set at EUR 21 120 000. Lastly, the latter amount must be reduced by 15% under the leniency programme, which results in a fine of a final amount of EUR 17 952 000. IV. Costs 588 Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the Court may order each party to bear its own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party. 589 In the present case, the applicant has been successful in respect of a substantial part of its claims. Accordingly, it is fair in the circumstances of the case to decide that the applicant is to bear two thirds of its own costs and that the Commission is to bear its own costs and pay one third of the applicant’s costs. On those grounds, THE GENERAL COURT (Fourth Chamber, Extended Composition) hereby: 1. Annuls Article 1(1)(a), (2)(a), (3)(a) and (4)(a) 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 (Case AT.39258 – Airfreight) in so far as it finds that Air Canada participated in the element of the single and continuous infringement relating to the refusal to pay commission on surcharges; 2. Sets the amount of the fine imposed on Air Canada in Article 3(a) of Decision C(2017) 1742 final at EUR 17 952 000; 3. Dismisses the action as to the remainder; 4. Orders the European Commission to bear its own costs and to pay one third of the costs incurred by Air Canada; 5. Orders Air Canada to bear two thirds of its own costs. Kanninen Schwarcz Iliopoulos Spielmann Reine Delivered in open court in Luxembourg on 30 March 2022. E. Coulon H. Kanninen Registrar President Table of contents I. Background to the dispute A. Administrative procedure B. The Decision of 9 November 2010 C. Action challenging the Decision of 9 November 2010 before the Court D. Contested decision II. Procedure and forms of order sought III. Law A. The claim for annulment 1. The first plea, alleging infringement of the rights of the defence, of the right to be heard and of essential procedural requirements as regards the Commission’s failure to send a new statement of objections to the incriminated carriers 2. The second plea, alleging, in essence, a failure to state reasons as to the scope of the single and continuous infringement (a) The finding of a single and continuous infringement ‘on a global basis’ (b) The definition of the nature and scope of the single and continuous infringement (1) The geographic and temporal scope of the single and continuous infringement (2) Recitals 887 to 890 of the contested decision (c) The contradiction which led to the annulment of the Decision of 9 November 2010 3. The fourth plea, alleging a lack of jurisdiction on the part of the Commission to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes, on the one hand, and on EU-third country routes before 1 May 2004 and on non-EU EEA-third country routes before 19 May 2005, on the other (a) The second part of the plea, alleging a lack of jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes (1) The first complaint, based on a misinterpretation of Regulation No 411/2004 (2) The second and third complaints, based, respectively, on an error in the application of the implementation test and on an error in the application of the qualified effects test (i) The effects of coordination in relation to inbound freight services taken in isolation – The relevance of the effect at issue – The foreseeability of the effect at issue – The substantiality of the effect at issue – The immediacy of the effect at issue (ii) The effects of the single and continuous infringement taken as a whole (b) The first part of the plea, alleging a lack of jurisdiction to apply Article 101 TFEU to EU-third country routes before 1 May 2004 and Article 53 of the EEA Agreement to non-EU EEA-third country routes before 19 May 2005 4. The plea, raised of the Court’s own motion, alleging a lack of jurisdiction on the part of the Commission, in the light of the EC-Switzerland Air Transport Agreement, to find and penalise an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes 5. The third plea, alleging, in essence, manifest errors of assessment and of law in imputing to the applicant liability for the single and continuous infringement on intra-EEA routes and EU-Switzerland routes (a) The applicable principles (b) The grounds on which the Commission imputed to the applicant liability for the single and continuous infringement in so far as it concerns intra-EEA routes and EU-Switzerland routes (c) The merits of the grounds on which the Commission imputed to the applicant liability for the single and continuous infringement in so far as it concerns intra-EEA routes and EU-Switzerland routes 6. The fifth plea, alleging errors as regards the imputation to the applicant of liability for the single and continuous infringement (a) The first part of the plea, alleging misapplication of the concept of a single and continuous infringement (1) Admissibility (2) Substance (i) The incorrect inclusion within the scope of the single and continuous infringement of ‘local responses to local conditions’ and contacts within industry bodies outside the EEA (ii) The Commission’s alleged failure to distinguish between the conduct of the participants in the ‘real cartel’ and that of the other incriminated carriers (iii) The Commission’s alleged failure to examine the credibility of the various leniency statements (b) The second part of the plea, alleging that the Commission failed to prove, by means of credible evidence, the facts alleged against the applicant (1) Admissibility of Annex A.14 (2) Substance (i) The general criticism of the approach taken by the Commission (ii) The lack of probative value of the evidence relied on against the applicant in the contested decision – The evidence relating to the FSC – The evidence relating to the SSC – The evidence relating to the refusal to pay commission – The evidence relating to the applicant’s awareness of the conduct of the other carriers (c) The third part of the plea, alleging an error and an infringement of the rights of the defence as regards the Commission’s refusal to accept the withdrawal of the applicant’s leniency application B. The claim for a reduction in the amount of the fine 1. Admissibility 2. Substance IV. Costs * Language of the case: English.