Information;Judgment — ECLI:EU:T:2022:174
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
Origin: Netherlands

summary of those pleas in law. That information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, 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 legal and factual particulars 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). 264 It is sufficiently clear and precise from the applicant’s arguments that the applicant claims that the Commission committed a manifest error of assessment by finding that the element of the single and continuous infringement relating to the refusal to pay commission could be distinguished from the two other elements of that infringement, even though it did not have a sufficiently distinctive character. The explanations which the Commission has put forward in order to challenge the substance of this complaint show, moreover, that it was able to understand the arguments relied on in support of it. 265 The plea of inadmissibility must therefore be rejected. 266 Furthermore, although the Commission refrained from relying on it in the rejoinder (see paragraph 244 above), it is necessary to examine the plea of inadmissibility on grounds of public policy alleging the applicant’s lack of interest in raising this part of the plea. 267 When questioned on the plea of inadmissibility in the context of the Court’s measures of organisation of procedure, the applicant claimed that it had an interest in raising this part of the plea, in so far as it supported its claims for annulment and was linked to the first part of the third plea. 268 In particular, the applicant submits that, by the two parts of the third plea, it disputes the inclusion of the refusal to pay commission in the single and continuous infringement in respect of which it was found liable, and seeks to have the reference, in Article 1 of the contested decision, to that part of that infringement deleted. 269 The applicant states that it would clearly derive an advantage from the deletion of the reference at issue in the operative part of the contested decision, in so far as that would cease to have legal effects with respect to the conduct relating to the refusal to pay commission, in particular under Article 4 thereof, requiring it to refrain, in the future, from any similar conduct, and that its ‘relative liability’ for the single and continuous infringement would be diminished, with consequences in particular for the amount of the fine that should be imposed on it. 270 The applicant adds that this part of the plea is linked to the first part of the third plea, in so far as, if it were established that no commission was payable, there would then be no basis for maintaining the finding of a separate element relating to the refusal to pay commission. The present part of the plea is therefore not limited to the issue of the distinct nature of that element, but seeks to establish that it cannot be included within the scope of the single and continuous infringement. 271 The Commission, in its answers to the written questions put by the Court, again contends that the applicant cannot rely on a legitimate interest in raising this part of the plea solely from the point of view of actions for damages. 272 The Commission points out, as regards the benefits which the applicant derives from raising this part of the plea in so far as concerns the effects of the contested decision, that Article 4 thereof is purely declaratory in nature and not such as to establish an interest in obtaining annulment of that decision. As to the argument relating to the impact on the amount of the fine, it is new and out of time and should therefore be rejected as inadmissible. 273 It must be borne in mind that a plea for annulment is inadmissible on the ground that the applicant does not have an interest in bringing proceedings in that regard where, even if it were well founded, annulment of the contested act on the basis of that plea would not give the applicant satisfaction (judgment of 9 June 2011, Evropaïki Dynamiki v ECB, C‑401/09 P, EU:C:2011:370, paragraph 49; see also judgment of 26 October 2010, CNOP and CCG v Commission, T‑23/09, EU:T:2010:452, paragraphs 25 and 26). 274 According to the case-law, the interest in bringing proceedings must be vested and present and is evaluated as at the date on which the action is brought. An applicant cannot therefore rely on future and uncertain situations to justify his or her interest in seeking the annulment of the contested act (see, to that effect, judgment of 20 September 2007, Salvat père & fils and Others v Commission, T‑136/05, EU:T:2007:295, paragraphs 34 and 47). 275 In the present case, it should be observed that the applicant, by its arguments, does not challenge the truth of the facts underlying the refusal to pay commission or the fact that they are anticompetitive in nature. 276 Nor does the applicant call into question the Commission’s findings in recitals 872 to 883 of the contested decision in order to establish that the infringement at issue was a single infringement. Thus, the applicant agrees, in paragraph 79 of the application, with the description of the anticompetitive objective and the single nature of the conduct at issue, in that it all contributed to price coordination in freight matters (recitals 872 to 876 and 879 of the decision). The applicant also agrees, in paragraphs 80 and 81 of the application, with the finding as to the identity of the undertakings (recitals 878 and 881 to 883 of that decision) and individuals (recital 900 of that decision) involved, as well as the finding of parallels between the discussions in which those individuals took part (recital 880 of the decision). 277 In so far as the applicant claims, in response to the written questions put by the Court, that the element relating to the refusal to pay commission cannot be included within the scope of the single and continuous infringement, it must be observed that the applicant raises a new plea, the inadmissibility of which is obvious in the light of Article 84(1) of the Rules of Procedure, in so far as that complaint is not an amplification of a plea set out in the application and is not justified by the emergence of new matters of fact or law. It cannot be considered that this plea overlaps with the present part of the plea, which relates not to the inclusion in the single and continuous infringement of the conduct relating to the refusal to pay commission, but to the question whether that conduct must be differentiated from the elements of the single and continuous infringement relating to the surcharges. It should be added that the written questions put by the Court after the reopening of the oral part of the procedure had a precisely defined purpose, as is apparent from paragraphs 57 and 266 above, which it is not for the applicant to ignore in the observations that it submitted in response. 278 In so far as the applicant raises the issue of the differentiation between the element of the single and continuous infringement relating to the refusal to pay commission and its elements relating to the surcharges, it disputes neither the existence of the single and continuous infringement nor its characterisation or scope. It disputes the way in which the Commission presented its various elements within that scope. The applicant seeks, in this part of the plea, to have the reference to the refusal to pay commission redacted from the operative part of the contested decision. 279 Even if the reference to the refusal to pay commission were to be redacted from the operative part of the contested decision, the findings in that decision relating to the conduct underpinning the establishment of that element of the single and continuous infringement, its anticompetitive nature and inclusion in the scope of that infringement would be maintained, since none of that conduct is disputed. In other words, the content of that decision would be unchanged, the only difference being that the anticompetitive conduct covered by the references in that operative part to the refusal to pay commission would then covered by the references to the FSC and the SSC read in the light of the reasons which constitute its essential basis. 280 Thus, the partial annulment of the contested decision on the basis of the present part of the plea would have no effect on the applicant’s liability for the single and continuous infringement, or on the gravity or duration thereof. Consequently, that annulment would also have no effect on the amount of the fine imposed on the applicant or on the scope of the order made in Article 4 of that decision. The applicant’s argument in that regard must therefore be rejected. As to the positive consequences which would ensue for the actions for damages brought against it in connection with the conduct to which the contested decision relates, it should be borne in mind that those consequences cannot, by themselves, form the basis of an interest in raising the present part of the plea (see, to that effect, paragraph 70 above). Moreover, those consequences are based on the hypothesis that the national court would interpret the operative part of that decision in accordance with the conjecture put forward by the applicant (see paragraph 243 above), which hypothesis the applicant itself accepts is uncertain and cannot, therefore, form the basis of an interest that was vested and present on the day the action was brought. Moreover, as has been found in paragraphs 71 to 77 above, it is apparent from the decision at issue that the geographic scope of that infringement, including that of the element relating to the refusal to pay commission, did not have a worldwide dimension, contrary to the interpretation put forward by the applicant, but was instead limited to the routes which the Commission regarded as falling within its jurisdiction. 281 In the light of the foregoing, it must be concluded that the partial annulment of the contested decision on the basis of this part of the plea would not procure an advantage for the applicant capable of forming the basis of its interest in bringing proceedings. 282 That conclusion is not called into question by the fact that the present part and the first part of the third plea are connected. It must be held that those parts are distinct, one based on infringement of an essential procedural requirement and the other based on a manifest error of assessment. The applicant has neither alleged nor demonstrated that the effects likely to follow from the acceptance of each of those parts are indissociable to such an extent that the finding of the admissibility of one of the parts should necessarily lead to that of the other. 283 In the light of the foregoing, this part of the plea must be declared inadmissible. It is therefore purely for the sake of completeness that the Court will examine the merits of that part. (2) The merits of the present part of the plea 284 It is apparent from the contested decision, and in particular from recitals 675 to 702 thereof, that the refusal to pay commission can be distinguished from the other two elements of the single and continuous infringement. Thus, it is one thing, for the carriers, to coordinate themselves directly on the application and value of the FSC and the SSC, but quite another for them to agree to deny freight forwarders a discount on the amount of those surcharges, once the principle of the application and amount thereof have been agreed upon. 285 It follows that the present part of the plea must be rejected as inadmissible and, in any event, unfounded. 286 Accordingly, the present plea in law must be rejected, as must the action in its entirety. IV. Costs 287 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 288 Under Article 135(1) of the Rules of Procedure, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his or her own, or even that he or she is not to be ordered to pay any. Furthermore, under Article 135(2) of those rules, the Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if that party has made the opposite party incur costs which the Court holds to be unreasonable or vexatious. 289 In the present case, the applicant has been unsuccessful and the Commission has expressly applied for costs. However, the Court considers that the circumstances of the case justify ordering the Commission to bear one third of its own costs and the applicant to bear its own costs and pay two thirds of those incurred by the Commission. On those grounds, THE GENERAL COURT (Fourth Chamber, Extended Composition) hereby: 1. Dismisses the action; 2. Orders the European Commission to bear one third of its own costs; 3. Orders Martinair Holland NV to bear its own costs and pay two thirds of those incurred by the Commission. 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. 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 observations on the giving of effect to the judgment of 16 December 2015, Martinair Holland v Commission (Case T67/11) B. The claim for annulment 1. The second plea in law, alleging lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services (a) The first part of the plea, alleging incorrect interpretation of Regulation No 411/2004 (b) The second and third parts, alleging, respectively, an error in the application of the implementation test and an error in the application of the qualified effects test (1) The effects of coordination in relation to inbound freight services taken in isolation (i) The relevance of the effect at issue (ii) The foreseeability of the effect at issue (iii) The substantiality of the effect at issue (iv) The immediacy of the effect at issue (2) The effects of the single and continuous infringement taken as a whole 2. The plea, raised of the Court’s own motion, alleging 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 3. The first plea, alleging infringement of the prohibition on arbitrariness, the principle of equal treatment and the obligation to state reasons 4. The third plea in law, alleging breach of the obligation to state reasons and a manifest error of assessment in the treatment of the refusal to pay commission as a separate element of the single and continuous infringement (a) The scope of the third plea (b) The first part of the plea, alleging contradictory reasoning (c) The second part of the plea, alleging manifest error of assessment (1) The admissibility of the present part (2) The merits of the present part of the plea IV. Costs * Language of the case: English.