Judgment;Abstract — ECLI:EU:T:2022:175
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
Origin: Denmark;Sweden

summary 06 Dec 01’ and contains a table titled ‘FSC removal by country’. It is apparent in particular from that table that, ‘in Scandinavia’, the applicants had planned to remove the FSC on 20 December 2001, but that for CPA the ‘official notice’ was still ‘pending’. 630 However, the applicants had already announced, by means of a press release of 5 December 2001, that they would remove the FSC with effect from 20 December 2007. As is apparent from the file relating to the administrative procedure, five of the seven other carriers identified in the table titled ‘FSC removal by country’ had publicly announced between 21 November and 6 December 2001 that they would remove the FSC in December 2001. 631 As regards the other two carriers identified in the table in question, it is true that the applicants have not established that they had announced their plan to remove the FSC on 6 December or an earlier date. It must, however, be observed, as noted by the applicants, that the dates on which the announcement of their project to remove the FSC was published do not appear in the file relating to the administrative procedure and that one of them had ceased to exist on the date on which the action was brought. In those circumstances, since the announcements in question were published more than 15 years before that date, the applicants cannot be held liable in that regard. 632 The Commission was therefore not justified in inferring from the document referred to in recital 196 of the contested decision that an anticompetitive contact had taken place involving the applicants. The mere fact that the applicants participated in multilateral contacts several months (recitals 173 and 237) or even years apart (recital 394) in which CPA also participated is not capable of calling that conclusion into question. 633 In the second place, in recital 273 of the contested decision, the Commission referred to an internal Qantas email of 17 February 2003 from which it is apparent that a number of carriers, including the applicants, ‘[had] indicated they [would] be increasing the FSC from GBP 0.06/kg to GBP 0.09/kg’ and that ‘[Lufthansa] Germany [were] expected to announce an increase from EUR 0.10/kg to EUR 0.15/kg [the next day]’. 634 The applicants admittedly argue that Qantas could have obtained that information indirectly, for example via their website or a freight forwarder. However, they have failed to adduce the slightest evidence to substantiate that argument. 635 The only document on which the applicants rely in support of their argument is a newsletter published by a freight forwarder on 14 February 2003. However, that bulletin does not mention the applicants. On the contrary, it states as follows: ‘We have received notice as of Friday, February 14th that Cargolux, … , British, KLM, … , and the Lan Chile Group (approx five [carriers]) will increase their FSC by five-cents to $0.15/kg. We anticipate receiving notice from virtually all [carriers] next week.’ 636 The applicants have therefore failed to establish that the Commission erred in relying against them on the email referred to in recital 273 of the contested decision. 637 In the third place, the Commission referred to two exchanges of internal AF emails. 638 First, in recital 406 of the contested decision, the Commission relied on an internal AF email of 20 September 2004. That email concerns the situation in Denmark and is worded as follows: ‘We just got the info that [Lufthansa] will increase the FSC to 0.3 Euros on Oct 04th [2004]. I guess [SAS] will follow very quickly so we adjust ourself to the [SAS] level.’ 639 The use of the wording ‘I guess’ in that email shows a degree of uncertainty as to the applicants’ intentions which tends to cast doubt on the existence of such a contact. 640 The other documents in the file are not conclusive either. An overall reading of the exchanges in which that email is included shows that the assumption made in recital 406 of the contested decision was intended solely to anticipate the lack of information as to the applicants’ intentions. In those exchanges, it is stated that the applicants’ announcement is ‘not ready yet’ and that ‘I think we should wait to hear the position’ of the applicants. Reference is also made to the possibility that the applicants might ‘not [advise]’. 641 Contrary to the Commission’s contention, there is nothing to suggest that AF expected the applicants to inform it of their intention to increase the FSC by bilateral and non-public means. On the contrary, it is apparent from an internal AF email of 23 September 2004 that it was ultimately through a newsletter of the applicants, to which it had subscribed, that AF became aware of those intentions. 642 Secondly, in recital 415 of the contested decision, the Commission refers to an email of 23 September 2004 entitled ‘fuel surcharge Denmark’, in which AF asks KL[M] if it had been able to ‘fix the issue on KL alignment on AF, [Lufthansa] and [the applicants]’. 643 However, neither that email nor those which preceded or followed it refer to any contact between AF and the applicants. Nor do they imply that such contact took place. On the contrary, it is apparent from an internal AF email of 20 September 2004 and the applicants’ written pleadings that the intention was to ensure that, following the merger between AF and KLM, KLM ceased to charge a lower FSC than the competition. 644 The other evidence to which the Commission refers (recitals 173, 174, 425, 546 and 966 of the contested decision) do not invalidate that conclusion. 645 First of all, the exchange of emails referred to in recital 546 of the contested decision does not establish that there was contact between AF and the applicants. As the Commission states, that exchange shows only that the applicants aligned their conduct with that of AF and KLM and induced SAC to do the same. Moreover, that exchange dates from November 2005. It therefore took place more than a year after the email referred to in recital 415 of the contested decision. 646 Next, the meeting of 22 January 2001 referred to in recitals 173 and 174 of the contested decision precedes the email referred to in recital 415 of the contested decision by more than three years. 647 Furthermore, contrary to what is stated in recital 966 of the contested decision, it was not to the applicants that AF sent the email of 27 June 2005 from which it is apparent that ‘we have “agreed” to 3.30 DKK AF/KL[M] from 7 July 2005’. AF sent that email to Lufthansa, which subsequently transferred it to the applicants. 648 Lastly, the contact at issue referred to in recital 425 of the contested decision is a BARIG cargo committee meeting of 3 September 2004, in which the applicants, Lufthansa and AF participated, among others. It is true that that meeting concerned, inter alia, the FSC. However, as is apparent from paragraph 448 above, it was for Lufthansa to communicate to the other participants in that meeting its latest news in that regard. Moreover, as is apparent from the minutes of that meeting, that meeting related above all to the situation in Germany. 649 The Commission cannot therefore infer from that meeting that there were local contacts between AF and the applicants in Denmark. 650 In the light of the foregoing and in the absence of other firm, precise and consistent evidence establishing that the contacts referred to in recitals 196, 406 and 415 of the contested decision substantiated the applicants’ participation in the single and continuous infringement, they must be excluded from the body of evidence which the applicants contest as a whole in the tenth part of the present plea. (i) The ninth part of the plea, alleging errors in the assessment of the applicants’ knowledge of the conduct of the other incriminated carriers 651 The applicants claim that the Commission failed to discharge its burden of proving that they were aware or should have been aware of all the anticompetitive conduct concerning surcharges and the refusal to pay commission in which they did not participate and in relation to which they were not prepared to bear the risk. 652 In accordance with the case-law cited in paragraph 459 above, in order to ascribe to the applicants the single and continuous infringement as a whole, the Commission was required to establish either that the applicants had participated in all the conduct comprising that infringement or that they were aware of all the unlawful conduct which the other participants in the cartel planned or put into effect in pursuit of the same objectives, and in which the applicants had not directly participated, or which the applicants could have reasonably foreseen and in relation to which they were prepared to bear the risk. 653 However, the mere fact that there is identity of object between an agreement in which an undertaking participated and an overall cartel does not suffice to render that undertaking responsible for the overall cartel. That applies even where there are objective links between that agreement and the overall cartel. It is only if the undertaking concerned, when participating in an agreement, knew or should have known that in so doing it was joining in the overall 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). 654 It is for the Commission to prove that the undertaking concerned had the requisite knowledge of the anticompetitive conduct planned or put into effect by the other participants in the overall cartel but in which it did not directly participate (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 67). 655 In order to do so, the Commission must adduce evidence that is sufficiently precise and consistent to establish that the undertaking concerned had such knowledge (see, to that effect, judgment of 20 March 2002, Sigma Tecnologie v Commission, T‑28/99, EU:T:2002:76, paragraph 51). 656 The Commission is not, however, required to establish that the undertaking concerned was aware, or should have been aware, in detail, of the concerted practices that took place in the context of the contacts at issue in which it did not participate. Nor is it necessary for it to establish that the undertaking in question was aware, or should 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). 657 The undertaking concerned must 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). 658 Where that is the case, the fact that an undertaking did not take part in all the constituent elements of a cartel or that it played only a minor role in the elements in which it did participate must be taken into consideration only when the gravity of the infringement is assessed and, as the case may be, in determining the amount of the fine (see judgment of 10 October 2014, Soliver v Commission, T‑68/09, EU:T:2014:867, paragraph 65 and the case-law cited). 659 It is in the light of those principles that it is necessary to determine whether the Commission was justified in concluding that the applicants had the requisite knowledge of the conduct of the other incriminated carriers in which they did not participate directly concerning, first, the surcharges and, secondly, the refusal to pay commission. (1) The surcharges 660 The applicants maintain that they were not, and could not have been, aware of the various instances of conduct engaged in by the other incriminated carriers in relation to the surcharges. They put forward two arguments in support of that claim. 661 In the first place, the applicants note that the Commission wrongly relied, in recital 791 of the contested decision, on emails from Lufthansa containing announcements concerning the FSC in order to establish that they knew, or at least should have known, that Lufthansa was coordinating the FSC with other carriers. Those emails merely contain Lufthansa’s public announcements concerning the FSC, they do not reveal anything about prior coordination within the core group, they concern only the periods between February 2003 and September 2004 and between March 2005 and September 2005 and were sent by Lufthansa’s sales manager in Germany either to his local counterparts at 18 carriers, a number of which were not held responsible for the single and continuous infringement, or to carriers that purchased capacity from Lufthansa. 662 In the second place, the Commission failed to examine five arguments and items of evidence that the applicants had submitted for the purposes of establishing that their staff were unaware of the conduct of the other carriers, had no reason to suspect them and were not prepared to accept the risk. 663 First, Lufthansa’s internal guidelines, a copy of which was sent to the applicants, show that Lufthansa had actively taken measures to comply with the competition rules as regards surcharges. Those guidelines never referred to the prior announcement of coordination between Lufthansa and the other incriminated carriers, most of which belonged to the core group. In support of their argument, the applicants rely on a resolution of Lufthansa’s board of directors of 21 December 1999 regarding the introduction of the FSC. 664 Secondly, Lufthansa confirmed that it had not informed the applicants of its contacts with other carriers. When Lufthansa’s central employee within the core group sent the applicants information concerning those carriers, he did not reveal that he had previously communicated with those carriers, but referred instead to his personal expectations or to publicly accessible information. 665 Thirdly, the applicants’ employees did not belong to the core group. The latter was composed of senior executives of the main carriers and their personal contacts at other carriers. 666 Fourthly, the applicants could not have known about the activities of the core group through the behaviour of its members on the market. 667 Fifthly, the applicants could not have been aware of the conduct that took place in third countries in which they did not engage. Moreover, there is no evidence that the applicants were prepared to assume the risk of such conduct. On the contrary, they received express assurances from the Danish competition authority that there was no risk in that regard. 668 The Commission disputes the applicants’ line of argument. 669 It should be borne in mind that, in recital 882 of the contested decision, the Commission concluded that the applicants were ‘involved in two of the three elements (FSC and SSC)’ of the single and continuous infringement, and not that they merely had proven or presumed knowledge of it. However, it is clear from the Commission’s replies to the arguments put forward by Air Canada and British Airways in recitals 894 to 897 of the contested decision that it did not consider that the applicants had directly participated in all the anticompetitive activities which fell within those elements. 670 In the first place, as regards the FSC, the Commission, in recital 791 of the contested decision, referred to eight contacts for the purpose of establishing that the applicants ‘knew or at least should have known that [Lufthansa] coordinated the FSC implementation with other carriers’. As is apparent from footnote 1248 to the contested decision, these are the emails described in recitals 274, 279, 346, 411, 446, 450, 482 and 495 of the contested decision, by which Lufthansa communicated its announcements regarding the increase of the FSC to various carriers. 671 The addressees of those 8 emails include a total of 10 incriminated carriers. Five of those carriers, namely Air Canada, CPA, Japan Airlines, SAC and the applicants, were among the addressees of all those emails. The remaining five carriers, namely AF, Cargolux, KLM, Lan Airlines and Martinair, received between two and five of those emails. 672 The applicants participated in other anticompetitive contacts with each of those 10 carriers, with the exception of Lan Airlines. Thus, first of all, the applicants communicated with Air Canada and KLM concerning both the establishment of the FSC and its implementation (recitals 135, 144 to 146, 174 and 394 of the contested decision). Next, the applicants coordinated with Japan Airlines, Lufthansa and SAC concerning the implementation of the FSC, both in the context of the WOW alliance (recitals 401, 434, 484, 488, 490, 494, 496, 497, 512, 531 and 546 of that decision) and outside it (recitals 145, 146, 204 and 559 of that decision). Lastly, the applicants participated in contacts concerning the implementation of the FSC with AF (recitals 146, 174, 204 and 394 of the contested decision), Cargolux (recitals 174 and 394 of the contested decision), Martinair (recitals 204 and 394 of the contested decision) and CPA (recitals 295 and 394 of the contested decision). 673 A number of the contacts identified in the preceding paragraph involved the author of the eight emails in question, namely Lufthansa, and at least four of the incriminated carriers which were among their addressees (recitals 145, 146 and 394 of the contested decision). 674 The fact that the addressees of the emails described in recitals 274, 279, 346, 411, 446, 450, 482 and 495 of the contested decision included non-incriminated carriers or incriminated carriers that had entered into block space agreements with Lufthansa is irrelevant for reasons similar to those set out in paragraphs 463 to 465 and 475 to 495 above. 675 As regards the fact that the emails in question concerned only the periods between February 2003 and September 2004 and between March 2005 and September 2005, it must be held that the evidence relied on against the applicants in recital 791 of the contested decision establishes, as the Commission observes in that recital, the applicants’ awareness of a wider cartel involving Lufthansa and other incriminated carriers, including for the period prior to the emails at issue. That is the case, in particular, with the ‘coffee round’ of 22 January 2001 described in recital 174 of the contested decision, at which the change in the FSC level, in which Lufthansa, the applicants and a number of other incriminated carriers took part, was discussed (see paragraph 447 above). The same is true of the email referred to in recital 237 of the contested decision, referring to contacts involving both the applicants and Lufthansa and a number of other incriminated carriers concerning the application of the FSC. 676 In those circumstances, since the applicants have also failed to establish that there might be a plausible alternative explanation for the emails described in recitals 274, 279, 346, 411, 446, 450, 482 and 495 of the contested decision, other than the coordination of the FSC, the Commission was entitled to conclude that the emails were of such a nature as to give the applicants sufficient knowledge of the coordination between Lufthansa and other incriminated carriers. 677 In addition, it must be noted that several other contacts at issue to which the Commission refers in the contested decision were of such a nature as to give the applicants sufficient knowledge of the coordination between Lufthansa and other incriminated carriers. That is the case, in particular, with regard to the email of 27 June 2005 referred to in recital 966 of the contested decision, from which it is apparent that ‘we have “agreed” to 3.30 DKK AF/[KLM] from 7 July 2005’. As is apparent from paragraph 647 above, it is not an email which AF sent to the applicants but an email from AF which Lufthansa forwarded to them. 678 That is also the case for the email of 17 February 2003, also referred to in recital 966 of the contested decision. In that email, Lufthansa states the following to the applicants: ‘as discussed last week, we will increase the [FSC as from] 03.03.2003. I have attached the press release in German, the English version will follow very shortly. As I have seen [British Airways], [KLM], … are out as well. Heard that [Cargolux], … and others to follow as well.’ 679 Contrary to the applicants’ submission, it cannot be considered that that email merely revealed to them what Lufthansa expected as regards ‘other carriers’ actions or publicly available information’. On the contrary, it is apparent from that email that, unlike British Airways, KLM and another carrier, Cargolux and yet another carrier had not yet communicated their intentions to the public. As regards the use of the words ‘heard that’, it shows that, as the Commission observes, Lufthansa did not merely inform the applicants of its expectations. 680 The Commission therefore did not err in finding, in recital 791 of the contested decision, that the applicants had sufficient knowledge of the coordination between Lufthansa and other incriminated carriers. 681 The Commission was also entitled to consider that the applicants had sufficient knowledge of the conduct in third countries at which they were not present from the evidence referred to in recital 791 of the contested decision. It is apparent from recital 889 of the contested decision that the FSC was a measure of general application that was not route-specific and was intended to be applied on all routes, on a worldwide basis (see paragraphs 277 to 291 above). Any diligent operator aware of the scope of that coordination would have known, or at least should have known, that it extended to the third countries in which it did not operate. 682 The assurances that the applicants have received from the Danish competition authority are of no assistance to them in that regard. It is apparent from recitals 1268 and 1271 of the contested decision that the applicants claim to have received those assurances in the form of a decision in which the Danish competition authority stated that the Commission ‘was competent concerning intra EU routes only, and not on [EU-third country routes]’. However, that decision dates from 2002. It therefore precedes the extension of the Commission’s competence to apply Article 101 TFEU to international air transport on EU-third country routes with the entry into force of Regulation No 411/2004 and to apply Article 53 of the EEA Agreement to international transport on non-EU EEA-third country routes with the entry into force of Decision of the EEA Joint Committee No 40/2005 of 11 March 2005 amending Annex XIII (Transport) and Protocol 21 (on the implementation of competition rules applicable to undertakings) to the EEA Agreement (OJ 2005 L 198, p. 38). Thus, in recital 1271 of the contested decision, the Commission did not err in finding that the decision of the Danish competition authority on which the applicants rely concerned a ‘previous legal situation’ and could not give rise to legitimate expectations on the part of the applicants. 683 The Commission was therefore correct to consider that the applicants had the requisite knowledge of the coordination concerning the FSC between Lufthansa and other incriminated carriers and in third countries in which they did not operate. 684 In the second place, as regards the SSC, in recital 792 of the contested decision, the Commission summarised the evidence on which it relied in concluding that the applicants had participated directly in the element of the single and continuous infringement relating to the SSC. The Commission thus inferred, inter alia, from that evidence that the applicants had ‘knowledge of the wider coordination of the SSC as they had [had] direct contact with competitors concerning the implementation of the SSC’. 685 In the context of the present part of the plea, the applicants do not put forward any argument capable of calling that reasoning into question. At most it can be inferred from their written pleadings that they criticise the Commission for considering that they were aware of the coordination relating to the SSC in countries in which they did not operate. 686 It is apparent from recital 889 of the contested decision that, like the FSC (see paragraph 681 above), the SSC was a measure of general application that was not route-specific and was intended to be applied on all routes, on a worldwide basis. Any diligent operator aware of the scope of that coordination would therefore have known, or at least should have known, that it extended to the third countries in which it did not operate. 687 In the light of the foregoing, it must be concluded that the applicants are not justified in criticising the Commission for concluding that they had sufficient knowledge of the components of the element of the single and continuous infringement relating to the SSC in which they did not participate directly. 688 None of the other arguments advanced by the applicants is capable of casting doubt on those conclusions. 689 First, since the evidence relied on by the Commission was such as to give the applicants sufficient knowledge of the contacts at issue relating to surcharges in which they did not participate directly, it was not necessary for them to be able to become aware of them also by other means, in particular through their discussions with Lufthansa, observation of the conduct of their competitors on the market or by being part of the alleged ‘core group’. 690 Consequently, the Commission cannot be criticised for not having expressly examined the applicants’ arguments in that regard. 691 Secondly, as regards the argument relating to the measures that Lufthansa allegedly took to comply with competition rules, first of all, it should be noted that the applicants have not established that they were aware of such measures during the infringement period. On the contrary, as the applicants themselves acknowledge in the reply, they were not ‘able [to] recover any email in which [Lufthansa] sent its 2000 guidelines on the introduction of the FSC to [SAS Cargo]’. 692 Next, it should be observed that the only evidence on which the applicants rely in support of the present argument is a resolution of Lufthansa’s board of directors of 21 December 1999 regarding the introduction of the FSC. As the Commission rightly notes, that resolution relates exclusively to the announcement of the introduction of the FSC at the end of December 1999 and does not in any way establish that there was an internal policy of compliance with competition rules as regards the implementation of surcharges. 693 Last and in any event, it must be observed that, as noted by the Commission, the assurances that the applicants may have obtained as regards compliance with competition rules could not reasonably justify the conclusion that Lufthansa complied with the competition rules. As a matter of principle, undertakings themselves bear the risk of any incorrect assessment of their legal situation, in accordance with the general maxim that ignorance of the law is no defence (judgment of 15 July 2015, Socitrel and Companhia Previdente v Commission, T‑413/10 and T‑414/10, EU:T:2015:500, paragraph 304). 694 The present complaint must therefore be rejected. (2) Refusal to pay commission 695 The applicants claim that the Commission was wrong to consider that, in view of their involvement in the elements of the single and continuous infringement relating to surcharges, they could reasonably have foreseen the conduct of the other incriminated carriers concerning the refusal to pay commission and were prepared to bear the risk. First, the refusal to pay commission did not have the same anticompetitive aim as the surcharges. Secondly, and in any event, the mere identity of object of the various elements of the single and continuous infringement is not sufficient to establish that the applicants had the knowledge required regarding the refusal to pay commission. 696 The Commission contends, in essence, that the applicants could reasonably have foreseen the refusal to pay commission and were prepared to assume the risk, on the ground that the various elements of the single and continuous infringement were inextricably linked. The anticompetitive object of the surcharges would have been undermined if the surcharges had been subject to a form of price competition through commission. 697 In its rejoinder, the Commission adds that the reply and the annexes thereto as well as the emails referred to in recitals 680 and 686 of the contested decision show that the payment of commission had been discussed within the WOW alliance and that the applicants knew or should have known that they and the other carriers did not pay commission on surcharges. 698 It should be noted that, in recital 882 of the contested decision, the Commission found, in essence, that the applicants were directly involved in only two of the three elements of the single and continuous infringement, namely those relating to the FSC and the SSC. The Commission nevertheless considered that the applicants could also be held liable for the third element of the single and continuous infringement, namely that relating to the refusal to pay commission. According to the Commission, in view of their involvement in those elements of the single and continuous infringement, the applicants could have ‘reasonably foreseen exchanges between the parties on such a related matter as [the refusal to pay commission] and were prepared to take the risk’. In its rejoinder, the Commission stated that that was the case because the ‘purpose of co-ordination on surcharges (i.e. avoiding competition on price) would be undermined if surcharges were subject to commission’. 699 In so doing, the Commission did not base its conclusions on specific evidence, but, in essence, merely presumed that the applicants were aware of the element of the single and continuous infringement relating to the refusal to pay commission on the basis of its identity of object with the other two elements of that infringement. In accordance with the case-law referred to in paragraph 653 above, the objective economic complementarity between the surcharges and the refusal to pay commission is not, even if established, sufficient to establish that the applicants should reasonably have foreseen it. 700 It must therefore be held that the evidence on which the Commission relied in recital 882 of the contested decision was not such as to establish that the applicants had the requisite awareness of the anticompetitive activities of the other incriminated carriers concerning the refusal to pay commission. 701 In its written pleadings, the Commission nonetheless referred to three other items of evidence in the file relating to the administrative procedure to establish that the applicants were or should have been aware of those activities and that they were prepared to take the risk. 702 The first item of evidence is an internal email of 9 June 2005 referred to in recital 680 of the contested decision. In that email, an employee of the applicants reports the content of a conversation that he had had on the same day with ‘old contacts in [Cargo Accounts Settlement Systems; “CASS”)] Switzerland’ regarding concerted actions by freight forwarders’ associations concerning the payment of commission on surcharges. The employee states that ‘the whole question is exceptionally sensitive from a competition point of view, and it is important that the [the WOW alliance] does not [respond] collectively and that individual [members of the WOW alliance] do not give a “collective” reply’. According to that employee, ‘the best course of action would be that CASS, like in Switzerland, would advise about the consequences’. 703 There is nothing in the contested decision to suggest that CASS advised, in Switzerland, carriers to agree, in the context of a bilateral or multilateral framework, to refuse to negotiate the payment of commission with freight forwarders and to grant them rebates on surcharges. Nor can it be inferred from the contested decision that CASS communicated to the applicants evidence suggesting that the other incriminated carriers had acted in concert in such a way or envisaged doing so. On the contrary, it is apparent from the internal email of 9 June 2005 referred to in recital 680 of the contested decision that, in Switzerland, it was stated only, first, that prices and commission were a ‘bilateral question between [freight forwarder] and [carrier]’, secondly, that a freight forwarder could not unilaterally decide on adjustments and, thirdly, in essence, that the way in which freight forwarders proceeded could have significant consequences. 704 The Commission is therefore not justified in considering that the internal email of 9 June 2005 referred to in recital 680 of the contested decision establishes that the applicants were aware of the unlawful conduct planned or put into effect by the other incriminated carriers as regards the refusal to pay commission. 705 Nor is the Commission justified in inferring from the internal exchanges which followed the email of 9 June 2005 referred to in recital 680 of the contested decision that the refusal to pay commission was the subject of discussions within the WOW alliance. On the contrary, as is apparent from the email of 14 June 2005 referred to in that same recital, an employee of the applicants excluded that possibility, stating that ‘we cannot discuss this in [the WOW alliance] but have to deal with it in each company separately’. 706 The second item of evidence on which the Commission relies in its written pleadings in order to conclude that the applicants were aware of the unlawful conduct planned or put into effect by the other incriminated carriers as regards the refusal to pay commission is an email of 28 December 2005. It should be noted that that email is described in recital 686 of the contested decision. In that email, an SAC employee asks a number of carriers, including the applicants, whether ‘you have heard’ of a recent communiqué from DHL in Germany received by his Frankfurt (Germany) office and announcing the future collection of a commission on surcharges. The SAC employee adds that the communiqué refers to IATA Resolution 805zz, he states that he is unsure what that resolution is and thanks the recipients for their comments. 707 There is nothing in the wording of the email in question that expressly invites those carriers to agree to refuse to pay commission or, moreover, to exchange information on the commercial response that they intended to provide to the communiqué in question. 708 In view of the uncertainties regarding IATA Resolution 805zz that are expressed in the email in question, it is conceivable that the questions raised by the SAC employee simply related to whether any commission on surcharges was due. The reply of another employee of another carrier suggests nevertheless that the email from SAC could also be understood as concerning the commercial response to be provided to the communiqué from DHL. In an internal email of 3 January 2006, that employee mentioned that he had spoken to Lufthansa, which had stated, inter alia, that it would ‘not accept any such invoices’. 709 It follows that the email of 28 December 2005 described in recital 686 of the contested decision does not in itself prove that the applicants participated in the element of the single and continuous infringement relating to the refusal to pay commission. In accordance with the settled case-law cited in paragraph 344 above, it is nevertheless necessary to examine whether, taken in conjunction with other evidence, that email was capable of constituting a body of evidence rightly enabling the Commission to make a conclusion to that effect (see paragraphs 711 and 712 below). 710 The third item of evidence on which the Commission relies in its written pleadings in order to conclude that the applicants were aware of the unlawful conduct planned or put into effect by the other incriminated carriers as regards the refusal to pay commission is an extract from SAS Cargo’s reply to the Statement of Objections. It is apparent from that extract that, on 10 June 2005, one of the applicants’ employees sent an email to another carrier concerning the commission on surcharges against the express instructions of his superiors. The Commission merely maintains, however, that that extract ‘shows that [the applicants] received information on [commission on surcharges] from Lufthansa and that [their] employee responded’, without specifying the content of that information or, a fortiori, arguing that it concerned a potential concerted response to the freight forwarders. 711 In those circumstances, and even supposing that those three items of evidence to which the Commission referred in the course of the proceedings could be taken into consideration, it cannot be considered that, assessed either individually or jointly, they were such as to give the applicants the requisite awareness of the unlawful conduct planned or put into effect by the other incriminated carriers as regards the refusal to pay commission. 712 In the absence of other firm, precise and consistent evidence capable of establishing such awareness, it must be concluded that the Commission erred in holding the applicants liable for the element of the single and continuous infringement relating to the refusal to pay commission. The present complaint must therefore be upheld and Article 1 of the contested decision must be annulled in so far as it holds the applicants liable for that element of the single and continuous infringement. The Court dismisses the present part of the plea as to the remainder. (j) The tenth part of the plea, alleging errors in the overall assessment of the body of evidence relied on by the Commission 713 The applicants claim that, in the contested decision, the Commission listed a series of isolated, disjointed and local conduct without examining whether there were objective links between them and that it therefore erred in inferring from the body of evidence relied on that the applicants participated in the elements of the single and continuous infringement relating to the FSC and the SSC. 714 As regards the contacts at issue that took place between December 1999 and December 2001, the evidence relied on by the Commission corresponds, in some cases, to conduct unrelated to transport within the EEA. The other contacts are not sufficient to establish the applicants’ participation in the single and continuous infringement, either because they do not prove that contacts with other carriers took place, or because they concern facts covered by an alliance, or because they do not fall within the material, geographic or temporal scope of the single and continuous infringement. Moreover, most of the evidence relied on concerning the contacts at issue that took place between May 2004 and February 2006 is ineffective or relates to legitimate conduct in the context of alliances or conduct required by local regulations. In any event, that evidence reflects a series of isolated and local incidents. 715 As regards the conduct related to the SSC, most predate May 2004. They have no connection with transport within the EEA, relate to facts covered by an alliance or local regulation or do not prove the existence of contacts between the applicants and other carriers. The only conduct subsequent to May 2004 relates to legitimate behaviour in the context of an alliance. 716 The Commission disputes the applicants’ line of argument. 717 By the present part of the plea, the applicants claim, in essence, that it is apparent from the first to ninth parts of the present plea that the body of evidence relied on by the Commission in recitals 791 and 792 of the contested decision, viewed as a whole, is not capable of establishing that they participated in the elements of the single and continuous infringement relating to the FSC and the SSC. 718 In the present case, in the first place, as regards the conduct relating to the FSC, it is apparent from the examination of the first to ninth parts of the present plea that, of the approximately 40 contacts at issue on which the Commission relied, only 6 must be excluded from the body of evidence relied on in recital 791 of the contested decision. These are the contacts referred to in recitals 196, 223, 406, 415, 443 and 517 of the contested decision. 719 In that regard, first, it should be observed that the contacts reported in recitals 223 and 517 of the contested decision are among the 13 contacts at issue that the Commission relied on in order to conclude that the implementation of the FSC was discussed between the members of the WOW alliance, including the applicants. As is apparent from the examination of the second to fourth parts of the present plea, the 11 remaining contacts are sufficient to justify that conclusion. 720 Secondly, it should be noted that the contact referred to in recital 443 of the contested decision is among the three contacts at issue on which the Commission relied in order to conclude that the applicants had exchanged emails with the members of ACCS, revealing the actions they had planned and their future announcements. As is apparent from the examination of the fourth complaint in the sixth part of the present plea, the two remaining contacts are sufficient to justify that conclusion. 721 Thirdly, it should be noted that the contacts referred to in recitals 196, 406 and 415 of the contested decision are among the eight contacts at issue referred to in recital 791 of the contested decision in support of the finding that ‘there is some further evidence relating to contacts with competitors’. As is apparent from the use of the word ‘further’, this finding was made for the sake of completeness. Therefore, even if the exclusion of the contacts referred to in recitals 196, 406 and 415 of the contested decision were such as to vitiate that finding, that would have no bearing on the ability of the body of evidence relied on in recital 791 of the contested decision to establish, as the case may be, the applicants’ participation in the element of the single and continuous infringement relating to the FSC. 722 In any event, it must be observed that, as is apparent from the examination of the sixth to eighth parts of the present plea, the five other contacts relied on in support of the finding that ‘there is some further evidence relating to contacts with competitors’ were sufficient to justify it. 723 Fourthly, the contacts referred to in recitals 196, 223, 406, 415, 443 and 517 of the contested decision occurred in periods in respect of which the Commission has other evidence supporting the finding of the applicants’ participation in the element of the single and continuous infringement relating to the FSC, as is apparent in particular from recitals 204, 237, 401, 411, 425, 434, 531 and 546 of the contested decision. 724 It follows from the foregoing that the applicants’ arguments in support of the present part of the plea are not capable of calling into question the body of evidence relied on by the Commission in recital 791 of the contested decision in order to establish their participation in the element of the single and continuous infringement relating to the FSC. 725 In the second place, as regards the conduct relating to the SSC, it must be stated that the applicants’ line of argument in support of the present part of the third plea reproduces, in essence, the argument underlying its first nine parts of the plea in so far as it concerns the element of the single and continuous infringement relating to the SSC. However, that argument has been rejected. 726 Moreover, as regards the emails referred to in recitals 618 and 620 of the contested decision, it was found in paragraphs 338 to 344 above that they did not constitute direct evidence of the applicants’ involvement in the element of the single and continuous infringement relating to the SSC, but only evidence that had to be assessed with all the other elements put forward by the Commission in recital 792 of the contested decision. The emails referred to in recitals 618 and 620 of the contested decision are part of the nine contacts at issue referred to in recital 792 of the contested decision in support of the finding that the applicants coordinated the SSC level with the members of the WOW alliance. In addition, there is the contact referred to in recital 673 of that decision. As is apparent from the examination of the fourth, sixth and eighth parts of the present plea, those contacts were sufficient to justify the finding of coordination of the SSC level between members of the WOW alliance. 727 The applicants’ line of argument cannot therefore call into question the body of evidence relied on by the Commission in recital 792 of the contested decision in order to establish their participation in the element of the single and continuous infringement relating to the SSC. 728 It is therefore necessary to reject the present part of the plea and, consequently, to conclude that, subject to the errors found in paragraph 562 above as regards their participation in the coordination of the FSC in Thailand between 20 July 2005 and 14 February 2006 and in paragraph 712 above as regards their participation in the element of the single and continuous infringement relating to the refusal to pay commission, the applicants have failed to establish, in the context of the present plea, that the Commission erred in determining the extent of their participation in the single and continuous infringement. 4. The fourth plea in law, alleging infringement of Article 266 TFEU, the right to property enshrined in Article 17 of the Charter and the obligation to state reasons 729 The fourth plea, by which the applicants claim that the contested decision is vitiated by internal inconsistencies, is divided into three parts, alleging, first, infringement of Article 266 TFEU, secondly, infringement of the right to property enshrined in Article 17 of the Charter and, thirdly, breach of the obligation to state reasons. (a) The first part of the plea, alleging infringement of Article 266 TFEU 730 The applicants claim that the Commission infringed Article 266 TFEU by failing to take the necessary measures to comply with the judgment of 16 December 2015, SAS Cargo Group and Others v Commission (T‑56/11, not published, EU:T:2015:990). Thus, the contested decision is vitiated by the same inconsistencies as those which the Court identified in that judgment between the theory of a single and continuous infringement, on the one hand, and contradictory findings of liability on the part of the various carriers which participated in the infringing conduct, on the other. The applicants cite in that regard the divergent conclusions which the Commission reached concerning an exchange of emails of 13 and 14 December 1999, from which it inferred the beginning of their participation in the single and continuous infringement, while excluding the participation of the other two carriers involved in that email exchange. 731 The Commission disputes the applicants’ line of argument. 732 Pursuant to Article 266 TFEU, the institution whose act has been declared void is required to take the necessary measures to comply with the judgment annulling its act. That obligation involves only taking the necessary measures to comply with the judgment annulling its measure (judgment of 29 November 2007, Italy v Commission, C‑417/06 P, not published, EU:C:2007:733, paragraph 52). 733 According to settled case-law, in order to comply with a judgment annulling a measure and to implement it fully, the institution concerned is required to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part (judgments of 26 April 1988, Asteris and Others v Commission, 97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraph 27, and of 6 March 2003, Interporc v Commission, C‑41/00 P, EU:C:2003:125, paragraph 29). 734 Under Article 266 TFEU, the institution concerned is required to ensure that any act intended to replace the annulled act is not vitiated by the same irregularities as those identified in the annulling judgment (see, to that effect, judgment of 29 April 2004, IPK-München and Commission, C‑199/01 P and C‑200/01 P, EU:C:2004:249, paragraph 83). 735 By judgment of 16 December 2015, SAS Cargo Group and Others v Commission (T‑56/11, not published, EU:T:2015:990), the Court found that the Decision of 9 November 2010 was vitiated by contradictions between its grounds and its operative part, the former describing a single and continuous infringement, relating to all the routes covered by the cartel in which the 21 addressees of the Decision of 9 November 2010 allegedly participated, whereas the latter referred either to four separate single and continuous infringements, or to just one single and continuous infringement, liability for which was attributed to the carriers which, as regards the routes mentioned in Articles 1 to 4 of the Decision of 9 November 2010, had participated directly in the unlawful conduct referred to in each of those articles or had been aware of the collusion on those routes and had accepted the risk (see paragraph 17 above). 736 In addition, the Court considered that the grounds of the Decision of 9 November 2010 contained significant internal inconsistencies in so far as they contained assessments that were difficult to reconcile with the existence of a single cartel covering all of the routes referred to in the operative part, as described in the grounds (judgment of 16 December 2015, SAS Cargo Group and Others v Commission, T‑56/11, not published, EU:T:2015:990, paragraph 75). One of those assessments found that the starting date of participation in the infringement for certain carriers was 1 May 2004, on the ground that those carriers could not be held liable for the infringement as regards intra-EEA routes and that Regulation No 1/2003 had become applicable to the routes they served only from that date (judgment of 16 December 2015, SAS Cargo Group and Others v Commission, T‑56/11, not published, EU:T:2015:990, paragraph 76). 737 In the present case, the applicants have not put forward any argument to show that the contradictions noted above were reproduced in the contested decision. They merely observe that the beginning of their participation in the single and continuous infringement was determined on the basis of the email exchanges of 13 and 14 December 1999, unlike other carriers which were nonetheless involved in those exchanges. They do not state how that fact establishes that the contested decision maintained the contradictions identified in the judgment of 16 December 2015, SAS Cargo Group and Others v Commission (T‑56/11, not published, EU:T:2015:990), and, in particular, contradicts the finding of a single and continuous infringement, relating to all the routes covered by the cartel, in which all of the incriminated carriers participated. 738 Moreover, contrary to the applicants’ assertions, the Court did not rule, in paragraph 85 of the judgment of 16 December 2015, SAS Cargo Group and Others v Commission (T‑56/11, not published, EU:T:2015:990), that the Commission had given insufficient reasons for the Decision of 9 November 2010 by finding that the email exchange of 13 and 14 December 1999 was evidence of the applicants’ participation, but not that of the other carriers party to that exchange. In that paragraph, the Court addressed the consequences of the contradictions in the Decision of 9 November 2010 if its operative part were to be read as describing four separate single and continuous infringements. In that regard, the Court referred to the applicants’ allegation that the Commission had treated the exchange of emails of 13 and 14 December 1999 in a discriminatory manner solely to illustrate the consequences of those contradictions. As the Court observes, in essence, in paragraph 85 of the judgment of 16 December 2015, SAS Cargo Group and Others v Commission (T‑56/11, not published, EU:T:2015:990), those contradictions deprived the applicants of the possibility to understand whether they had been treated differently to the other addressees of the Decision of 9 November 2010 involved in the email exchanges at issue on the ground that those other addressees did not operate certain routes. 739 The applicants have therefore failed to establish that the contested decision is vitiated by an infringement of Article 266 TFEU. The present part of the plea must therefore be rejected. (b) The second part of the plea, alleging infringement of the right to property enshrined in Article 17 of the Charter 740 The applicants claim that the Commission acted in an arbitrary and selective way in their regard, thus infringing the right to property enshrined in Article 17 of the Charter, which should, under Article 52(3) of the Charter, have the same meaning and scope as Article 1 of Additional Protocol No 1 to the ECHR. To impose a fine on them constitutes an unjustified interference with their right to property, on account of its arbitrary and inconsistent nature, in so far as the Commission did not hold certain infringers liable for the infringement, or held them liable for a shorter period. 741 The Commission disputes the applicants’ line of argument. 742 As has been pointed out in paragraph 424 above, the fact that an undertaking in a position similar to that of an applicant was not found by the Commission to have committed any infringement cannot constitute a ground for setting aside the finding of an infringement by that applicant, provided it was properly established, the circumstances of that other undertaking not even being the subject of proceedings before the EU Courts. The same applies where the undertaking concerned relies on the fact that the undertaking which is allegedly in a similar position was not penalised for part of its participation in the infringement (see, to that effect, 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). 743 In the context of the present part of the plea, referring once again to the Commission’s assessments relating to the email exchange of 13 and 14 December 1999, the applicants specifically criticise the Commission for acting arbitrarily in failing to hold liable some of those responsible for the single and continuous infringement, or in finding them liable for a shorter period. The present part of the plea must therefore be rejected. 744 In any event, as regards the fact that the Commission failed to hold certain infringers of the single and continuous infringement liable, it should be borne in mind that, as is apparent from paragraph 463 above, the possibility of establishing an undertaking’s participation in an infringement depends on all the evidence against it, as the Commission correctly points out. Thus, it is apparent from paragraph 464 above that the Commission was right to state that it ‘[did] not necessarily hold every recital … and every single item of evidence therein to be of equal value’ and that ‘rather, the recitals to which reference [was] made [formed] part of the overall body of evidence [on which it relied] and [had] to be evaluated in this context’. It follows that the fact that a non-incriminated undertaking or an undertaking found liable to a lesser extent is mentioned in certain documents relied on by the Commission against incriminated undertakings is not sufficient to consider that the former is in a similar situation to the latter, as regards their liability for the infringement in question. 745 It follows that the Commission was entitled, without in any way rendering the contested decision arbitrary, to take the view that an overall assessment of the contacts at issue relied on against the applicants was sufficient to incriminate them, while taking the view that there was no sufficiently convincing body of evidence to incriminate the non-incriminated carriers which had participated in some of those contacts. 746 Similarly, as regards the differences between the dates which the Commission found to be the starting dates of the applicants’ participation in the infringement and that of the other two incriminated carriers involved in the email exchange of 13 and 14 December 1999, it must be borne in mind that the determination of the date on which an undertaking began to participate in the infringement may depend on a body of evidence established concomitantly with, before or after the date concerned (see, to that effect, judgment of 16 June 2015, FSL and Others v Commission, T‑655/11, EU:T:2015:383, paragraph 178). 747 The Commission was therefore entitled, again without rendering the contested decision arbitrary, to consider that a body of evidence established concomitantly was sufficient to incriminate SAS Consortium as from 13 December 1999, while considering that there was no such body of evidence to incriminate, as of the same date, the other two incriminated carriers which had also participated in the email exchange of 13 and 14 December 1999. 748 Consequently, the Commission cannot be criticised for having identified different starting dates of participation in the single and continuous infringement for the applicants, on the one hand, and the other two incriminated carriers, on the other, even though all those carriers were involved in the email exchange of 13 and 14 December 1999. 749 Moreover, as the Commission correctly notes, without being challenged in that regard, the dates on which participation in the single and continuous infringement began correspond, for each of the three incriminated carriers, to the dates of the first incriminating emails they sent (see recitals 135 and 161 of the contested decision) and, as regards the applicants, they sent the email of 13 December 1999. It follows that there is an objective justification for the different starting dates of participation in the single and continuous infringement found by the Commission in the present case. Any arbitrary conduct on the part of the Commission in that regard must therefore be ruled out. 750 It follows that the complaint alleging infringement of the right to property, which was based entirely on the allegedly arbitrary and inconsistent nature of the proceedings in the present case, must be rejected. 751 In the light of the foregoing, the present plea must be rejected. (c) The third part of the plea, alleging breach of the duty to state reasons 752 The applicants claim, in essence, that the Commission does not give sufficient reasons for its decision, first, not to hold liable certain carriers involved in the single and continuous infringement and, secondly, to find a different starting date for participation in the single and continuous infringement for the other incriminated carriers involved in the email exchanges of 13 and 14 December 1999. 753 The Commission disputes the applicants’ line of argument. 754 In that regard, first, as regards the Commission’s decision not to hold liable certain carriers involved in the infringement, it must be borne in mind that the Commission was under no obligation to set out in the contested decision the reasons why other carriers were not held liable for the single and continuous infringement. The obligation to state the reasons on which a measure is based cannot encompass an obligation for the institution from which it emanates to give reasons for the fact that it did not adopt other measures of a similar kind addressed to third parties (judgment of 8 July 2004, JFE Engineering v Commission, T‑67/00, T‑68/00, T‑71/00 and T‑78/00, EU:T:2004:221, paragraph 414). 755 In the present case, the applicants rely specifically on the Commission’s failure to explain why undertakings which were in a situation similar to their own were not held liable for the single and continuous infringement. 756 It follows that that line of argument cannot succeed. 757 Moreover, as regards the alleged infringement of the obligation to state reasons on account of the allegedly inconsistent treatment of the email exchange of 13 and 14 December 1999, it should be noted that, in recital 1169 of the contested decision, the Commission set 13 December 1999 as the starting date of the applicants’ participation in the infringement. In the same recital, it set the starting date for the participation of the two other incriminated carriers involved in the email exchange of 13 and 14 December 1999, respectively, as 21 September 2000 and 14 December 1999. 758 As stated in paragraph 749 above, it is apparent from the contested decision that those dates correspond, for each of the three incriminated carriers involved in the exchange of emails of 13 and 14 December 1999, to the dates of the first incriminating emails they sent. In recital 1148 of the contested decision, the Commission identified those emails. As far as the applicants are concerned, these are the emails referred to in recitals 135 and 790 to 792 of the contested decision. As regards the two other incriminated carriers involved in the email exchanges of 13 and 14 December 1999, these are the emails referred to, respectively, in recitals 161 and 717 to 720 of the contested decision and recitals 135 and 773 to 777 of the contested decision. 759 Consequently, the Court must reject as unfounded the claim that the Commission gave insufficient reasons for its decision to set a different starting date for participation in the infringement for the three incriminated carriers which were involved in the email exchanges of 13 and 14 December 1999. 760 It follows from the foregoing that the present part of the plea must be rejected and, consequently, the fourth plea must be rejected in its entirety. 5. The fifth plea in law, alleging errors in the determination of the amount of the fine imposed on the applicants 761 The applicants put forward their fifth plea in the alternative, in the event that the Court should find that the Commission was entitled to impose a fine on them. The present plea is based, in essence, on five parts alleging, first, errors in the calculation of the value of sales, secondly, errors in the assessment of the gravity of the single and continuous infringement, thirdly, errors in the assessment of the duration of the single and continuous infringement, fourthly, errors in the application of point 28 of the 2006 Guidelines on repeated infringement, and, fifthly, errors in the assessment of mitigating circumstances. (a) The first part of the plea, alleging errors in the calculation of the value of sales 762 The applicants claim that the Commission infringed point 13 of the 2006 Guidelines by including, in the value of sales, some of their sales which were not related, directly or indirectly, to the single and continuous infringement. This concerns, first, sales on non-EU EEA-Switzerland routes, secondly, sales that took place ‘outside the EEA’, thirdly, sales on routes unrelated to the ‘handful of routes’ on which the applicants participated in local and isolated incidents and, fourthly, amounts linked to price components of freight services other than the FSC and the SSC. 763 Point 13 of the 2006 Guidelines is worded as follows: ‘In determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates in the relevant geographic area within the EEA. It will normally take the sales made by the undertaking during the last full business year of its participation in the infringement.’ 764 As is apparent from the case-law, that point pursues the objective of adopting as the starting point for the setting of the fine imposed on an undertaking an amount which reflects the economic significance of the infringement and the relative size of the undertaking’s contribution to it (judgments of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 57, and of 28 June 2016, Portugal Telecom v Commission, T‑208/13, EU:T:2016:368, paragraph 237). 765 Consequently, while the concept of the ‘value of sales’ referred to in point 13 of the 2006 Guidelines admittedly cannot extend to encompassing sales made by the undertaking in question which do not come within the scope of the alleged cartel, it would, however, be contrary to the goal pursued by that provision if that concept were to be understood as applying only to turnover achieved by the sales in respect of which it is established that they were actually affected by that cartel (judgments of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 76, and of 1 February 2018, Panalpina World Transport (Holding) and Others v Commission, C‑271/16 P, not published, EU:C:2018:59, paragraph 30). 766 Such a limitation would, moreover, have the effect of artificially minimising the economic significance of the infringement committed by a particular undertaking since the mere fact that a limited amount of direct evidence of sales actually affected by the cartel had been found would lead to the imposition of a fine which bore no actual relation to the scope of application of the cartel in question. Such a reward for being secretive would also adversely affect the objective of the effective investigation and sanctioning of infringements of Article 101 TFEU and, therefore, cannot be permitted (judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 77). 767 It is in the light of those considerations that the four errors which the applicants claim vitiate the calculation of the value of sales in the contested decision must be analysed. (1) Inclusion, in the value of sales, of turnover from the sale of airfreight services on non-EU EEA-Switzerland routes 768 The applicants complain that the Commission included, in the value of sales, the sales of airfreight services on non-EU EEA-Switzerland routes, in respect of which the Commission did not have jurisdiction to find and penalise an infringement of competition rules. 769 The Commission contends that the applicants’ line of argument is based on a misinterpretation of the contested decision, according to which an infringement of Article 53 of the EEA Agreement was found on non-EU EEA-Switzerland routes. The Commission also contends that the applicants’ line of argument is purely abstract, on the ground that they do not specify whether they serve those routes or, if so, what share of their turnover they derive from those routes. 770 In the reply, the Commission adds that the applicants’ sales on non-EU EEA-Switzerland routes are so low that their exclusion from the value of sales would have no impact on the amount of the fine. 771 It is apparent from paragraphs 763 to 766 above that the value of sales cannot include sales which do not fall, directly or indirectly, within the scope of the infringement at issue. 772 In that regard, it has been held in paragraph 251 above that the Commission did not hold the applicants liable for an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes in Article 1(3) of the contested decision. Those routes did not fall within the scope of the single and continuous infringement. They were not related to the single and continuous infringement, within the meaning of point 13 of the 2006 Guidelines, and could not therefore be included in the value of sales. 773 In response to the written and oral questions of the Court, the Commission acknowledged that it had included in the value of sales an amount of EUR 262 084 in respect of sales of freight services made by the applicants in 2005 on non-EU EEA-Switzerland routes. 774 It follows that, as the Commission agreed at the hearing, the calculation of the value of sales in the contested decision is vitiated by error in so far as it includes those sales. (2) Inclusion, in the value of sales, of turnover from sales that ‘took place outside the EEA’ and the general reduction of 50% 775 The applicants criticise the Commission for having included, in the value of sales, the turnover from sales that took place outside the EEA, which were not therefore made, in direct or indirect relation to the infringement, in the relevant geographic area within the EEA, within the meaning of point 13 of the 2006 Guidelines. It was not sufficient to grant the incriminated carriers the general reduction of 50% to reflect the fact that inbound and outbound services were partially supplied outside the EEA and that part of the harm caused by the cartel in so far as it related to those routes materialised outside the EEA. 776 The Commission’s approach was imprecise, arbitrary and vitiated by an inadequate statement of reasons. The Commission thus failed to identify clearly the proportion of inbound and outbound services or the alleged harm that occurred outside the EEA. The contested decision does not contain any analysis of the place where that harm occurred or the place where the services in question were provided. In particular, the Commission was not entitled to take the view that the turnover from sales of inbound services was equivalent to that from sales of outbound services, since it knew that the revenue that the applicants generated on inbound routes was much higher than that which they generated on outbound routes. 777 Nor does the contested decision contain any analysis intended to establish whether the approach followed, which diverged from point 13 of the 2006 Guidelines, could lead to equal treatment of all carriers. 778 The Commission disputes the applicants’ line of argument. 779 As a preliminary point, it should be observed that the applicants do not identify precisely the sales which, in their view ‘took place outside the EEA’. It must, however, be noted that, in the context of the second plea, the applicants submitted that sales of freight services were ‘handled locally’ and that the ‘contacts between the freight forwarders and carriers [occurred] at the point of origin’ of the routes, since the carriers could meet freight forwarders’ requirements only if they could transport products from that point. 780 It should be stated that the point of origin of outbound freight services is, by definition, within the territory of the EEA. Conversely, the point of origin of inbound freight services is, by definition, outside the territory of the EEA. The applicants’ reference to sales that ‘took place outside the EEA’ must therefore be understood as referring to sales of inbound freight services. 781 That having been clarified, it should be recalled that point 13 of the 2006 Guidelines makes the inclusion, in the value of sales, of turnover from the goods or services of the undertaking concerned subject to the condition that they are ‘goods or services to which the infringement directly or indirectly relates in the relevant geographic area within the EEA’. 782 Point 13 of the 2006 Guidelines does not thus refer to ‘sales negotiated’ or ‘sales invoiced’ within the EEA, but refers only to ‘sales’ in the EEA. It follows that that point does not preclude the Commission from using sales to customers established outside the EEA, or require account to be taken of sales negotiated or billed in the EEA. Otherwise, an undertaking participating in an infringement would merely have to ensure that it negotiates, or bills, its sales to subsidiaries of its customers located outside the EEA in order to ensure that those sales would not be taken into account in the calculation of the amount of a potential fine, which would therefore be much smaller (see, to that effect, judgment of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission, C‑615/15 P, not published, EU:C:2017:190, paragraph 55). 783 As regards the interpretation of the concept of ‘sales … within the EEA’ which the applicants seek to draw from the Commission’s decision in Case COMP/39.406 – Marine hoses, it is sufficient to note that the Commission’s practice in earlier decisions does not itself serve as a legal framework for fines imposed in competition matters, since that framework is defined solely in Regulation No 1/2003 and the 2006 Guidelines (see judgment of 9 September 2011, Alliance One International v Commission, T‑25/06, EU:T:2011:442, paragraph 242 and the case-law cited), and that it has not, in any event, been demonstrated that the facts of the case giving rise to that decision, such as the markets, goods, countries, undertakings and periods concerned, were comparable to those of the present case (see, to that effect, judgment of 29 June 2012, E.ON Ruhrgas and E.ON v Commission, T‑360/09, EU:T:2012:332, paragraphs 262 and the case-law cited). 784 That concept must be interpreted in the light of the objective of point 13 of the 2006 Guidelines. That objective is, as is apparent from paragraphs 764 and 766 above, to adopt as the starting point for the calculation of fines an amount which reflects, inter alia, the economic significance of the infringement on the relevant market, while the turnover achieved on the goods or services in respect of which the infringement was committed constitutes an objective criterion giving a proper measure of the harm which that infringement does to normal competition (see judgment of 28 June 2016, Portugal Telecom v Commission, T‑208/13, EU:T:2016:368, paragraph 236 and the case-law cited). 785 It is thus for the Commission, for the purposes of determining whether sales were made ‘within the EEA’, within the meaning of point 13 of the 2006 Guidelines, to opt for a criterion which reflects the reality of the market, that is to say, which is the best for ascertaining the effects of the cartel on competition in the EEA. 786 In recitals 1186 and 1197 of the contested decision, the Commission stated that, in calculating the value of sales, it had taken into account the turnover from the sale of freight services on intra-EEA routes, EU-third country routes, EU-Switzerland routes and non-EU EEA-third country routes. As is apparent from recital 1194 of that decision, the sales related to EU-third country routes and non-EU EEA-third country routes included both sales of outbound freight services and sales of inbound freight services. 787 In recital 1194 of the contested decision, in order to justify the inclusion of turnover from the sale of those services in the value of sales, the Commission referred to the need to take account of their ‘specificities’. It thus observed, inter alia, that the single and continuous infringement related to those services and that the ‘anti-competitive arrangements [were] likely to have a negative impact on the internal market in respect of both [of them]’. 788 As is apparent from paragraphs 156 to 237 above and contrary to what the applicants maintain, it was foreseeable that the single and continuous infringement, including in so far as it related to inbound routes, would produce substantial and immediate effects in the internal market or within the EEA and was thus liable to harm normal competition within the EEA. In recitals 1194 and 1241 of the contested decision, the Commission nevertheless acknowledged that part of the ‘harm’ resulting from the conduct at issue in respect of EEA-third country routes was likely to fall outside the EEA. It also noted that some of those services were provided outside the EEA. It therefore relied on point 37 of the 2006 Guidelines and granted the incriminated carriers a reduction of 50% of the basic amount of the fine in relation to EEA-third country routes. 789 In those circumstances, to hold that the Commission could not include, in the value of sales, 50% of the turnover generated on those routes would amount to prohibiting it from taking into account, for the purposes of calculating the amount of the fine, sales which fall within the scope of the single and continuous infringement and which were liable to harm competition within the EEA. 790 Contrary to the applicants’ claims, that reduction is not vitiated by illegality. As is apparent from recital 1241 of, and footnote 1536 to, the contested decision, the Commission applied that reduction under point 37 of the 2006 Guidelines, which empowers it to depart from the general methodology set out in those guidelines where justified by the particularities of a given case or the need to achieve deterrence in a particular case. 791 In that regard, in the case of a decision imposing a fine, the Commission is required to provide a statement of reasons, inter alia for the amount of the fine imposed and for the method chosen in that regard. The Commission must indicate in its decision the factors which enabled it to determine the gravity of the infringement and its duration, there being no requirement for any more detailed explanation or indication of the figures relating to the method of calculating the fine. It must nevertheless explain the weighting and assessment of the factors taken into account (see judgment of 10 November 2017, Icap and Others v Commission, T‑180/15, EU:T:2017:795, paragraph 291 and the case-law cited). 792 Where the Commission decides, as in the present case, to apply point 37 of the 2006 Guidelines and thus to depart from the general methodology set out in those guidelines, by which it limited the discretion it may itself exercise in setting the amount of fines, the requirement to state reasons is all the more applicable. Those reasons must be all the more specific because that point simply makes a vague reference to ‘the particularities of a given case’ and thus leaves the Commission a broad discretion where it decides to make an exceptional adjustment of the basic amount of the fines to be imposed on the undertakings concerned. In such a case, the Commission’s respect for the rights guaranteed by the EU legal order in administrative procedures, including the obligation to state reasons, is of even more fundamental importance (judgment of 13 December 2016, Printeos and Others v Commission, T‑95/15, EU:T:2016:722, paragraph 48). 793 In the present case, it should be noted that the Commission adhered to the general methodology of the 2006 Guidelines for almost all the stages of the calculation of the fine and departed from it under point 37 only in order to apply the general reduction of 50% to the basic amount. The reasons why the Commission decided to depart in that way from the general methodology of the 2006 Guidelines, which it had followed during the previous stages of the calculation of the basic amount of the fine, are set out in recitals 1194 and 1241 of the contested decision. As has already been stated in paragraph 788 above, those recitals indicate that some of the services in question were provided outside the EEA and that part of the ‘harm’ relating to the conduct at issue on EEA-third country routes was likely to materialise outside the EEA. 794 In stating that those circumstances justified a reduction of 50% of the basic amount for both inbound and outbound routes, the Commission explained to the requisite standard the reasons underlying the general reduction of 50% and thus enabled the applicants to understand the justification of the methodology used and the Court to verify that justification. 795 As regards the justification of the general reduction of 50%, it must be observed that the Commission cannot be accused of arbitrariness. The Commission based its approach on two objective criteria (see paragraph 793 above), the validity of which the applicants have not challenged, namely, first, the places where freight services on EEA-third country routes were provided and, secondly, the places where the harm resulting from the single and continuous infringement materialised in so far as it concerned those routes. 796 As regards the alleged failure to carry out a precise analysis of those places, it must be held that the Commission was entitled to make an exceptional adjustment to the basic amount on the basis that the two criteria adopted justified a reduction such as that granted. 797 The applicants’ argument that they generated a higher turnover on inbound routes than on outbound routes is irrelevant in that regard. First, that argument, which relates exclusively to the applicants’ individual situation, is not capable of establishing that the two criteria set out in recitals 1194 and 1241 of the contested decision, which relate more generally to inbound and outbound freight services and to the harm caused by the single and continuous infringement in connection with those services, are incorrect. Secondly, and in any event, that argument assumes that the general reduction of 50% is based on the premiss that the relevant turnover was divided equally between inbound and outbound routes, which is not apparent from the contested decision. 798 In so far as the applicants claim that the Commission should nevertheless have adjusted the percentage of that reduction on the basis of the turnover proportions of each of the incriminated carriers, it must be borne in mind that, when determining the amount of the fine, there cannot, by the application of different methods of calculation, be any discrimination between the undertakings which have participated in an agreement or a concerted practice contrary to Article 101(1) TFEU (see, by analogy, judgment of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 58 and the case-law cited). 799 Applying a different method of calculation to the carriers in question according to the proportion of their turnover from inbound and outbound routes would, moreover, be tantamount to conferring an advantage on some of them on the basis of a criterion which is irrelevant in the light of the gravity and duration of the infringement (see, by analogy, judgment of 7 September 2016, Pilkington Group and Others v Commission, C‑101/15 P, EU:C:2016:631, paragraph 66 and the case-law cited). 800 Furthermore, in so far as the applicants claim that they were treated unequally in relation to the incriminated carriers that generated a higher turnover on outbound routes than on inbound routes, it must be borne in mind that the principle of equal treatment, which constitutes a general principle of EU law enshrined in Article 20 of the Charter, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 51 and the case-law cited). 801 Since the applicants have invoked a breach of the principle of equal treatment, it is for them precisely to identify comparable situations in relation to which they consider to have been treated differently or different situations in relation to which they consider to have been treated in the same way (see, to that effect, judgment of 12 April 2013, Du Pont de Nemours (France) and Others v Commission, T‑31/07, not published, EU:T:2013:167, paragraph 311). 802 In the present case, the applicants have failed to identify such situations. 803 It follows that the Commission was entitled to use 50% of the turnover on EEA-third country routes as an objective criterion giving a proper measure of the harm which the applicants’ participation in the cartel at issue did to normal competition, provided that it resulted from sales having a link with the EEA (see, to that effect, judgment of 27 February 2014, InnoLux v Commission, T‑91/11, EU:T:2014:92, paragraph 47). 804 Such a link exists in the present case as regards inbound routes, since, as is apparent from recitals 1194 and 1241 of the contested decision and as the Commission maintains in its written pleadings, inbound freight services are provided in part within the EEA. As stated in paragraph 198 above, those services are intended precisely to enable the transport of goods from third countries to the EEA. As the Commission rightly points out, part of their ‘physical’ service is by definition carried out in the EEA, where part of the transport of those goods takes place and where the cargo plane lands. 805 In those circumstances, the Commission was entitled to find that sales of inbound freight services had been made within the EEA within the meaning of point 13 of the 2006 Guidelines. 806 The present complaint must therefore be rejected and it must be concluded that the Commission did not err in including, in the value of sales, 50% of the turnover from the sale of inbound freight services. (3) Inclusion, in the value of sales, of the total price of freight services rather than only the surcharges 807 The applicants claim that the Commission infringed point 13 of the 2006 Guidelines by including, in the value of sales, elements of the price of freight services which it has not established had any connection with the single and continuous infringement. These include, in particular, tariffs and surcharges other than the FSC and the SSC. 808 The Commission disputes the applicants’ line of argument. 809 It must be borne in mind that the concept of the value of sales, within the meaning of point 13 of the 2006 Guidelines, reflects the price, excluding tax, charged to the customer for the goods or services which were the subject of the infringement at issue (see, to that effect, judgments of 6 May 2009, KME Germany and Others v Commission, T‑127/04, EU:T:2009:142, paragraph 91, and of 18 June 2013, ICF v Commission, T‑406/08, EU:T:2013:322, paragraph 176 and the case-law cited). Having regard to the objective pursued by that point, set out in point 6 of those guidelines, which consists in adopting as the starting point for the calculation of the amount of the fine imposed on an undertaking an amount which reflects the economic significance of the infringement and the relative size of the undertaking’s contribution to it (see paragraph 764 above), the concept of the value of sales must thus be understood as referring to sales on the market concerned by the infringement (see judgment of 1 February 2018, Kühne + Nagel International and Others v Commission, C‑261/16 P, not published, EU:C:2018:56, paragraph 65 and the case-law cited). 810 The Commission may therefore use the total price which the undertaking charged its customers on the relevant market for goods or services to determine the value of sales, without it being necessary to distinguish or deduct the various elements of that price according to whether or not they were the subject of coordination (see, to that effect, judgment of 1 February 2018, Kühne + Nagel International and Others v Commission, C‑261/16 P, not published, EU:C:2018:56, paragraphs 66 and 67). 811 As the Commission notes, in essence, the FSC and the SSC are not distinct goods or services which may be the subject of an infringement of Articles 101 or 102 TFEU. On the contrary, as is apparent from recitals 17, 108 and 1187 of the contested decision, the FSC and the SSC are only two elements of the price of the services at issue. 812 It follows that, contrary to what the applicants submit, point 13 of the 2006 Guidelines did not preclude the Commission from taking into account the entire amount of sales linked to the services at issue, without splitting it into its constituent elements. 813 In addition, it should be observed that the approach advocated by the applicants amounts to considering that the price elements that were not specifically the subject of coordination between the carriers at issue must be excluded from the value of sales. 814 In that regard, it must be borne in mind that there is no valid reason to exclude from the value of sales any inputs the cost of which is outside the control of the parties to the alleged infringement (see, to that effect, judgment of 6 May 2009, KME Germany and Others v Commission, T‑127/04, EU:T:2009:142, paragraph 91). Contrary to what the applicants maintain, the same applies to price elements which, like rates, were not specifically the subject of that coordination, but form an integral part of the selling price of the product or service in question (see, to that effect, judgment of 15 March 2000, Cimenteries CBR and Others v Commission, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, EU:T:2000:77, paragraph 5030). 815 To decide otherwise would have the consequence of requiring the Commission not to take gross turnover into account in some cases but to do so in others, on the basis of a threshold which would be difficult to apply and would give scope for endless and insoluble disputes, including allegations of unequal treatment (judgment of 8 December 2011, KME Germany and Others v Commission, C‑272/09 P, EU:C:2011:810, paragraph 53). 816 The Commission therefore did not infringe point 13 of the 2006 Guidelines when it concluded, in recital 1190 of the contested decision, that the entire amount of sales linked to the services at issue should be taken into account, without it being necessary to split it into its constituent elements. 817 The present complaint must therefore be rejected. (4) The inclusion, in the value of sales, of sales on routes unrelated to the ‘handful of routes’ on which the applicants participated in local and isolated incidents 818 The applicants complain that the Commission used the value of sales ‘related to broad geographic areas’, even though the conduct of which they were accused related mostly to local and isolated incidents affecting at most a ‘handful of routes’. 819 It would be all the more apposite to exclude sales not covered by the single and continuous infringement since, first, only a small number of sales were affected by the conduct at issue given that the applicants’ general policy was to apply the same surcharges as Lufthansa pursuant to the alliance subject to the 1996 exemption and, secondly, the alleged illegality of a number of elements of the single and continuous infringement has not been established. That is the case, in particular, for EEA-third country routes in respect of which the Commission did not assess the regulatory regimes of third countries. 820 The Commission disputes the applicants’ line of argument. 821 It should be borne in mind that, as is apparent from all of the foregoing, the Commission was entitled to ascribe to the applicants liability for the single and continuous infringement on intra-EEA routes, EU-third country routes, EU-Switzerland routes and non-EU EEA-third country routes. It follows that the single and continuous infringement covers all of those routes, and not only the ‘handful of routes’ on which the applicants claim to have been involved in local and isolated incidents. 822 The Commission was therefore entitled, without infringing point 13 of the 2006 Guidelines, to include, in the value of sales, sales made on all intra-EEA routes, EEA-third country routes, EU-Switzerland routes and non-EU EEA-third country routes. 823 In the light of the foregoing, the complaint concerning the inclusion, in the value of sales, of turnover from the sale of airfreight services on non-EU EEA-Switzerland routes must be upheld and the present part of the plea must be rejected as to the remainder. (b) The second part of the plea, alleging errors in the assessment of the gravity of the single and continuous infringement 824 The applicants claim that the Commission infringed Article 23(3) of Regulation No 1/2003 and points 19 and 20 of the 2006 Guidelines by applying an excessive gravity factor of 16%. According to the applicants, the Commission did not take account of all the relevant circumstances of the present case when determining the gravity of the single and continuous infringement. In particular, the Commission failed to take account of the applicants’ individual liability. 825 The applicants put forward, in essence, five complaints in support of that claim. 826 In the first place, the Commission wrongly failed to take into account the fact that the single and continuous infringement did not cover the entire price of the services in question and that the coordination of two (minor) elements of the total price, with no demonstrated effect on the total price, is plainly less grave than the coordination of the entire price, with proven effects on the market. 827 In the second place, the gravity factor of 16% applied by the Commission represents between 45 and 320% of the value of the surcharges concerned and thus exceeds the maximum threshold of 30% referred to in point 21 of the 2006 Guidelines. The surcharges, taken together, represented annually between 5 and 35% of the total value of concerned sales between February 2000 and February 2006. 828 In the third place, in recital 1199 of the contested decision, the Commission assumed, without any justification, that the single and continuous infringement had operated ‘to the detriment of … customers and ultimately the general public’. 829 In the fourth place, the application of the same gravity factor to all the addressees of the contested decision is contrary to the principle of individual punishment and the principle of proportionality. The 10% reduction granted to the applicants on account of mitigating circumstances in recital 1259 of the contested decision does not fully reflect the difference between the applicants’ situation and that of the other incriminated carriers. 830 In the fifth place, the conduct of the applicants was outside the core group and was generally limited to coordination complying with the ASAs in third countries and cooperation in the context of alliances. That conduct was not secret, was mostly made public by publication in newspapers or on the internet and was submitted to or approved by competition authorities. 831 The Commission disputes the applicants’ line of argument. 832 Under Article 23(3) of Regulation No 1/2003, in fixing the amount of the fine, regard is to be had inter alia to the gravity of the infringement. 833 Points 19 to 23 of the 2006 Guidelines read as follows: ‘19. The basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement. 20. The assessment of gravity will be made on a case-by-case basis for all types of infringement, taking account of all the relevant circumstances of the case. 21. As a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales. 22. In order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of that scale, the Commission will have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented. 23. Horizontal price-fixing, market-sharing and output-limitation agreements, which are usually secret, are, by their very nature, among the most harmful restrictions of competition. As a matter of policy, they will be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale.’ 834 According to the case-law, a horizontal agreement by which the undertakings concerned agree not on the total price but on one element thereof constitutes a horizontal price-fixing agreement within the meaning of point 23 of the 2006 Guidelines and is therefore among the most harmful restrictions of competition (see, to that effect, judgment of 29 February 2016, UTi Worldwide and Others v Commission, T‑264/12, not published, EU:T:2016:112, paragraphs 277 and 278). 835 It follows that, as the Commission pointed out in recital 1208 of the contested decision, such an agreement generally merits a gravity factor at the higher end of the scale of 0 to 30% referred to in point 21 of the 2006 Guidelines. 836 According to the case-law, a gravity factor which is significantly lower than the upper limit of that scale, is highly favourable to an undertaking which is party to such an agreement (see, to that effect, judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 125) and may even be warranted in view of the very nature of the infringement (see judgment of 26 September 2018, Philips and Philips France v Commission, C‑98/17 P, not published, EU:C:2018:774, paragraph 103 and the case-law cited). 837 In recital 1199 of the contested decision, the Commission specifically considered that the ‘agreements and/or concerted practices to which [the contested decision] relates concerned the fixing of various elements of the price’. 838 The Commission was thus entitled, in recitals 1199, 1200 and 1208 of the contested decision, to characterise the conduct at issue as a horizontal price-fixing agreement or practice, even though it ‘did not cover the entire price for the services in question’. 839 The Commission was therefore entitled to conclude, in recital 1208 of the contested decision, that the agreements and practices at issue were among the most harmful restrictions of competition and, accordingly, merited a gravity factor ‘at the higher end of the scale’. 840 The gravity factor of 16% which the Commission adopted in recital 1212 of the contested decision, which was significantly lower than the upper limit of the scale referred to in point 21 of the 2006 Guidelines, could therefore have been warranted in view of the very nature of the single and continuous infringement. 841 However, it must be observed that, as is apparent from recitals 1209 to 1212 of the contested decision, the Commission did not rely solely on the nature of the single and continuous infringement in order to set the gravity factor at 16%. The Commission thus referred in that decision to the combined market shares of the incriminated carriers worldwide and on intra-EEA and EEA-third country routes (recital 1209), to the geographic scope of the cartel at issue (recital 1210) and to the implementation of the agreements and practices at issue (recital 1211). 842 However, the applicants do not dispute, in the context of the present part of the plea, the merits of those factors for the purposes of setting the gravity factor. 843 In those circumstances, the applicants cannot claim that a gravity factor of 16% was unlawful. 844 None of the applicants’ arguments can call that conclusion into question. 845 In the first place, in so far as the applicants submit that the Commission should have taken account of the allegedly public nature of their actions, it must be observed that that argument has no basis in law or in fact. In law, it should be borne in mind that the secret nature of a cartel is indeed a factor liable to exacerbate its gravity. However, point 23 of the 2006 Guidelines does not make classification of an infringement as one of the most harmful competition restrictions subject to its being secret. That point merely states that horizontal price-fixing agreements, which are, by their very nature, among the most harmful restrictions of competition, ‘are usually secret’. It follows that the secret nature of an infringement is not an essential condition for it to be classified as harmful within the meaning of point 23 of the 2006 Guidelines and for it to be penalised accordingly (see, to that effect and by analogy, 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 252). 846 Therefore, even if it were to be established, the secret nature of the applicants’ conduct is not such as to call into question the lawfulness of the gravity factor applied in recital 1212 of the contested decision. 847 In fact, it must be observed, as noted by the Commission, that the applicants did not merely participate in public conduct. On the contrary, they participated in secret conduct, a number of which even show an active desire for concealment. In recital 144 of the contested decision, the Commission refers to an exchange of internal emails of January 2000 in which an employee of the applicants told his colleagues to ‘make sure not to refer to other carriers [in a reply to a letter from the Finnish Forwarders Association], as this [could] be a problem with anti-trust watching authorities’ (see paragraph 400 above). 848 In the second place, in so far as the applicants rely on the absence of proven effects of the single and continuous infringement and on the fact that the Commission failed to prove that it had operated ‘to the detriment of … customers and ultimately the general public’, it must be borne in mind that the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3) provided that, in assessing the criterion of the infringement’s gravity, account had be taken of, inter alia, its actual impact on the market, where this could be measured. 849 However, that requirement no longer appears in the 2006 Guidelines, which are applicable in the present case. Accordingly, those guidelines do not require the Commission to take into consideration the actual impact of the infringement on the market in order to determine the percentage of the value of sales used for gravity in accordance with points 19 to 24 of those guidelines (see, to that effect, judgment of 16 June 2015, FSL Holdings and Others v Commission, T‑655/11, EU:T:2015:383, paragraph 539). 850 Nor does the case-law require it to do so, at least with regard to a restriction of competition ‘by object’. 851 The gravity of an infringement of competition rules must be determined by reference to numerous factors. Those factors include, in particular, the particular circumstances of the case, its context and the deterrent effect of fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up (order of 25 March 1996, SPO and Others v Commission, C‑137/95 P, EU:C:1996:130, paragraph 54, and 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 241). 852 The effects on the market may indeed be taken into account amongst those factors, but they are crucial only when one is dealing with agreements, decisions or concerted practices which do not directly have as their object the prevention, restriction or distortion of competition and which are not therefore liable to fall within the scope of application of Article 101 TFEU except as a result of their actual effects (judgment of 12 December 2018, Servier and Others v Commission, T‑691/14, under appeal, EU:T:2018:922, paragraph 1809). 853 If it were otherwise, the Commission, at the stage of calculating the amount of the fine, would be under an obligation to which, according to settled case-law, it is not subject for the purposes of applying Article 101 TFEU where the infringement in question has an anticompetitive object (see judgment of 3 September 2009, Prym and Prym Consumer v Commission, C‑534/07 P, EU:C:2009:505, paragraph 64 and the case-law cited). 854 In recital 903 of the contested decision, the Commission classified the conduct at issue as a restriction of competition ‘by object’. Contrary to the applicants’ submission, it was therefore not required to take into consideration the actual impact of the single and continuous infringement on the market. 855 The fact remains that, if the Commission considers it appropriate, for the purposes of calculating the amount of the fine, to take account of the actual impact of the infringement on the market, it cannot rely on a mere presumption, but must provide specific, credible and adequate evidence with which to assess what actual influence the infringement may have had on competition in that market (judgment of 3 September 2009, Prym and Prym Consumer v Commission, C‑534/07 P, EU:C:2009:505, paragraph 82). 856 Similarly, although the Commission is not required, for the purpose of setting fines, to establish that the infringement in question conferred an unlawful advantage on the undertakings concerned, or to take into consideration, where applicable, the absence of such an advantage, the assessment of the unlawful gains from the infringement may be relevant if the Commission relies precisely on such gains for the purpose of setting the gravity factor (see, to that effect, judgment of 15 March 2000, Cimenteries CBR and Others v Commission, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, EU:T:2000:77, paragraphs 4881 and 4882). 857 In recital 1199 of the contested decision, when setting the gravity factor, the Commission found that the agreements and practices at issue had ‘operated to the benefit of the [incriminated carriers] and to the detriment of their customers and ultimately the general public’. Yet the Commission did not refer to any evidence in support of that finding. 858 It should be observed, however, that the finding at issue is not an independent ground that the Commission relied on in order to assess the gravity of the single and continuous infringement, but one of a number of considerations which it took into account in assessing the nature of that infringement in recitals 1199 to 1208 of the contested decision. That consideration does not constitute the necessary basis for the conclusion that the infringement concerned the fixing of elements of the price of freight services and was, therefore, such as to justify a gravity factor at the lower end of the ‘scale’ referred to in point 23 of the 2006 Guidelines for the most serious restrictions of competition. Accordingly, the present argument is not such as to call into question the assessment of the nature of the infringement at issue as set out in the contested decision. Consequently, since the applicants have failed to establish that the gravity factor was not justified in the light of the other factors taken into account in the contested decision (see paragraphs 841 and 842 above), the present argument must be rejected. 859 In the third place, as regards the complaint that the gravity factor applied represents between 45 and 320% of the value of the surcharges concerned and thus exceeds the maximum threshold of 30% of the value of sales referred to in point 21 of the 2006 Guidelines, it is sufficient to observe that the applicants rely on the incorrect premiss that the Commission should have taken into account only the amount of the surcharges rather than the full price of the services in question for the purposes of setting the value of sales (see paragraphs 809 to 816 above). 860 In the fourth place, as regards the Commission’s alleged failure to take account of the individual contribution of each of the incriminated carriers for the purposes of setting the gravity factor, it should be borne in mind that the factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the agreement, decision or concerted practice, the profit which they were able to derive from it, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union (see judgment of 26 January 2017, Roca Sanitario v Commission, C‑636/13 P, EU:C:2017:56, paragraph 49 and the case-law cited). 861 It should be borne in mind, however, that the taking into account of differences between the conduct of the various undertakings that participated in the same infringement need not necessarily occur when setting the gravity factor, but may occur at another stage in the setting of the fine, such as when the basic amount of the fine is adjusted in the light of mitigating or aggravating circumstances under points 28 and 29 of the 2006 Guidelines (see, to that effect, judgment of 26 January 2017, Roca v Commission, C‑638/13 P, EU:C:2017:53, paragraph 67 and the case-law cited). 862 In the context of determining the gravity factor, in recital 1208 of the contested decision, the Commission stated that it would take into account the ‘fact that certain carriers may have played a minor … role … as a possible mitigating circumstance’. Thus, it took the view, in recitals 1258 and 1259 of that decision, that the applicants’ participation in the single and continuous infringement was limited in scope and, consequently, it granted them a 10% reduction in the basic amount of the fine on account of mitigating circumstances. 863 It follows that the Commission did not err in not taking into account the applicants’ limited participation in the single and continuous infringement also when setting the gravity factor. As regards the question whether the 10% reduction in the amount of the fine which the applicants received on account of their limited participation in the single and continuous infringement in the context of the assessment of mitigating circumstances was sufficient, it overlaps with the fifth part of the present plea and will be examined in the context of that part. 864 The present part of the plea must therefore be rejected. (c) The third part of the plea, alleging errors in the assessment of the duration of the single and continuous infringement 865 The applicants complain that the Commission erred in assessing the duration of the infringement. 866 The arguments put forward by the applicants in support of the present part of the plea overlap with those on which they rely in support of the third plea. As is apparent from paragraphs 353 to 358 above, that line of argument is unfounded. 867 The present part of the plea must therefore be rejected. (d) The fourth part of the plea, alleging errors in the increase of the basic amount on account of repeated infringement 868 The applicants claim that the Commission erred in increasing by 50% the basic amount of the fine imposed on SAS Consortium and SAS Cargo to reflect the fact that SAS Consortium had been an addressee of Commission Decision 2001/716/EC of 18 July 2001 relating to a proceeding pursuant to Article [101 TFEU] and Article 53 of the EEA Agreement (case COMP.D.2 37.444 – SAS/Maersk Air and Case COMP.D.2 37.386 – Sun-Air v SAS and Maersk Air) (OJ 2001 L 265, p. 15). 869 According to the applicants, Decision 2001/716, first, concerned an infringement which is neither identical nor similar to that described in the contested decision and, secondly, cannot justify an increase in the amount of the fine in respect of conduct prior to 18 July 2001, the date on which Decision 2001/716 was adopted. 870 In addition, the applicants claim that they received assurances from the Danish competition authority in 2002 that the EU authorities would not be in a position to take action against tariffs for freight transport approved or coordinated by public authorities and applicable to EU-third country routes. The applicants also maintain that the Commission, through its decision-making practice, encouraged the creation of alliances between carriers including price coordination. 871 As follows from point 28 of the 2006 Guidelines and from the case-law of the Court of Justice, the aggravating circumstance of repeated infringement is characterised by the continuation or repetition by an undertaking of the same or a similar infringement after the Commission or a national competition authority has made a finding that that undertaking had infringed Article 101 or 102 TFEU (see judgment of 5 March 2015, Commission and Others v Versalis and Others, C‑93/13 P and C‑123/13 P, EU:C:2015:150, paragraph 87 and the case-law cited). 872 According to the case-law, infringements are similar, or of the same type, for the purposes of establishing a finding of repeated infringement, if they both consist of an infringement of the same provisions of the TFEU (see, to that effect, judgments of 12 December 2007, BASF and UCB v Commission, T‑101/05 and T‑111/05, EU:T:2007:380, paragraph 64; of 6 May 2009, Outokumpu and Luvata v Commission, T‑122/04, EU:T:2009:141, paragraph 56; and of 30 September 2009, Hoechst v Commission, T‑161/05, EU:T:2009:366, paragraph 147). 873 The Commission taking repeated infringement into account meets the imperative of punishing repeated infringements of the competition rules by the same undertaking (judgment of 17 June 2010, Lafarge v Commission, C‑413/08 P, EU:C:2010:346, paragraph 61) and is intended to induce undertakings which have demonstrated a tendency towards infringing the competition rules to change their conduct (judgment of 8 February 2007, Groupe Danone v Commission, C‑3/06 P, EU:C:2007:88, paragraph 39). 874 The finding and the appraisal of the specific features of a repeated infringement come within the Commission’s discretion in relation to the choice of factors to be taken into consideration for the purpose of determining the amount of fines (judgment of 8 February 2007, Groupe Danone v Commission, C‑3/06 P, EU:C:2007:88, paragraph 38). In exercising that power, the Commission may, in each individual case, take into consideration the indicia which confirm an undertaking’s tendency to infringe competition rules, including, for example, the time that has elapsed between the infringements in question (judgment of 8 February 2007, Groupe Danone v Commission, C‑3/06 P, EU:C:2007:88, paragraph 39). According to the case-law, the Commission does not disregard the limits of that power by finding that the aggravating circumstance of repeated infringement applies in a case where the second infringement, which began before the establishment of the first infringement, did not mainly take place before that finding (see, to that effect, judgment of 8 July 2008, BPB v Commission, T‑53/03, EU:T:2008:254, paragraphs 394 to 396). 875 It is in the light of the abovementioned considerations and principles that the present part of the plea must be examined. 876 In the first place, as regards the alleged lack of similarity between the single and continuous infringement and the market-sharing agreement penalised by Decision 2001/716, it must be noted that those infringements both concern a horizontal agreement which the Commission considered infringed Article 101 TFEU. Those infringements must therefore be regarded as similar for the purpose of establishing the existence of repeated infringement. 877 That conclusion is not called into question by Commission Decision 2005/503/EC of 29 September 2004 relating to a proceeding under Article [101 TFEU] (case COMP/C.37.750/B2 – Brasseries Kronenbourg – Brasseries Heineken) (OJ 2005 L 184, p. 57), relied on by the applicants, in which the Commission considered that a previous price agreement was not of the same type as the ‘armistice’ agreement at issue in that decision. It is settled case-law that the Commission’s previous decision-making practice does not in itself serve as a legal framework for the fines imposed in competition matters, since that framework is defined solely in Regulation No 1/2003 and in the 2006 Guidelines and that it has not, in any event, been established that the facts of the case giving rise to that decision were comparable to those of the present case. 878 In the second place, as regards the Commission’s failure to distinguish and exclude, in the application of the increase of 50% in the basic amount for repeated infringement, the period of the single and continuous infringement which preceded the adoption of Decision 2001/716, first of all, it must be observed that, in accordance with the case-law referred to in paragraph 871 above, the aggravating circumstance of repeated infringement covers a situation where the second infringement is continued after the finding of the first infringement, which presupposes that it began before the first infringement was found. That applies, in the present case, to the participation of SAS Consortium and SAS Cargo in the single and continuous infringement, respectively, from 13 December 1999 and 1 June 2001, that is to say, before 18 July 2001, the date on which Decision 2001/716 was adopted. 879 Next, in recital 1244 of the contested decision, the Commission was justified, when assessing the characteristics of repeated infringement, in taking account of the fact that the applicants had in the present case continued a similar infringement for almost five years after the adoption of Decision 2001/716. That shows, first, that most of the single and continuous infringement took place after, and not before, the first finding of infringement, thereby distinguishing the facts of the present case from those at issue in the judgment of 11 March 1999, Thyssen Stahl v Commission (T‑141/94, EU:T:1999:48), relied on by the applicants. Secondly, it attests to the applicants’ tendency not to draw the appropriate conclusions from a finding that they had infringed the competition rules (see, to that effect, judgment of 8 July 2008, Lafarge v Commission, T‑54/03, not published, EU:T:2008:255, paragraph 727). 880 Last, it should be noted that point 28 of the 2006 Guidelines does not, as regards the method of increasing the basic amount on account of repeated infringement, distinguish according to whether the repeated infringement consists in the repetition or continuation of an infringement, and states only that ‘the basic amount will be increased by up to 100% for each infringement established’. By applying an increasing coefficient for repeated infringement to the basic amount taken as a whole, the Commission therefore complied with the indicative rules of conduct which it has imposed on itself and from which it cannot, in principle, depart (see, to that effect, judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 60). Nevertheless, although point 28 of the 2006 Guidelines does not provide for the possibility of adjusting the basis of assessment for the increase on account of repeated infringement in order to take account, where appropriate, of the relative part of the infringement period that preceded the first finding of infringement, it does not preclude the increase percentage from reflecting such a consideration. 881 In the light of the circumstances of the case, as recalled in particular in paragraph 879 above, the rules governing repeated infringement in the event of the finding of a similar infringement (see paragraphs 878 and 880 above) and the need for deterrence underpinning the application of the aggravating circumstance of repeated infringement (see paragraph 873 above), it must be held that the Commission did not err in applying an increase of 50% to the basic amount of the fine imposed on SAS Cargo and SAS Consortium. 882 That conclusion is not called into question by the applicants invoking an infringement of the principle of the presumption of innocence, in support of which they have not adduced any arguments. 883 In the third place, the applicants rely on assurances received from the Danish competition authority. That argument has already been examined and rejected in the context of the third plea (paragraph 682 above). 884 As regards the Commission’s decision-making practice relating to alliances between carriers including price coordination, it should be borne in mind that the conduct ascribed to the applicants did not fall exclusively within the ambit of the legitimate objectives of the various alliances to which they belonged. The conduct that did relate to such objectives, apart from that described in recital 517 of the contested decision, was not relied on against the applicants (see paragraph 332 above). 885 It follows that the present part must be rejected. (e) The fifth part of the plea, alleging errors in the consideration of mitigating circumstances 886 The applicants claim, in essence, that the Commission infringed point 29 of the 2006 Guidelines by failing to consider all the relevant factors in its assessment of mitigating circumstances and by granting them an insufficient reduction in the amount of the fine on account of the mitigating circumstances which it took into account. In that regard, the applicants note that SAS Cargo’s participation in the infringement was limited, that the coordination of surcharges was in many cases required by the regulatory regimes in third countries, that the creation of alliances between carriers including price coordination was a practice encouraged by the Commission, and that the 2002 decision of the Danish competition authority had given rise to a legitimate expectation that SAS Cargo’s compliance with the ASAs in third countries did not fall within the scope of EU competition rules. 887 The Commission disputes the applicants’ line of argument. 888 In that regard, it should be borne in mind that point 27 of the 2006 Guidelines provides that, in setting the amount of the fine, the Commission may take into account circumstances that result in an increase or decrease in the basic amount, on the basis of an overall assessment which takes account of all the relevant circumstances. 889 Point 29 of the 2006 Guidelines provides that the basic amount of the fine may be reduced where the Commission finds that mitigating circumstances exist. That point contains an indicative and non-exhaustive list of five types of mitigating circumstances which may be taken into account, including the substantially limited nature of the involvement of the undertaking in question in the infringement and the authorisation or encouragement of the anticompetitive conduct in question by public authorities or by legislation. 890 First, in recital 1263 of the contested decision, the Commission found that there was no regulatory regime which required the incriminated carriers to collude on their fares. However, it found, in recitals 1264 and 1265 of that decision, that some regulatory regimes had encouraged the incriminated carriers to engage in anticompetitive conduct and, consequently, granted them the general reduction of 15%, in accordance with point 29 of the 2006 Guidelines. 891 It should be noted that the applicants’ arguments challenging that assessment are the same as those which they put forward in support of the sixth part of the third plea (see paragraphs 505 to 507 above). The applicants maintain that the general reduction of 15% should have been greater, on the ground that ‘the laws and administrative practices’ of the countries in question ‘more than simply “[encouraged]” the coordination of surcharges: in many cases this was required’. 892 In that regard, in the first place, it should be observed that the relevant legislation either encouraged the conduct at issue on EEA-third country routes, in which case a reduction in the amount of the fine may be justified under point 29 of the 2006 Guidelines (see paragraphs 888 to 889 above), or required it, in which case no infringement of the competition rules could have been established, or any penalty imposed in respect of that conduct (see, to that effect, judgment of 11 November 1997, Commission and France v Ladbroke Racing, C‑359/95 P and C‑379/95 P, EU:C:1997:531, paragraph 33 and the case-law cited). 893 In so far as the applicants submit, in essence, that a number of regulatory regimes required coordination, their line of argument must be rejected as ineffective in so far as, even if it were well founded, it would vitiate the finding of an infringement, and not the application of point 29 of the 2006 Guidelines, which is at issue in the context of the present part of the plea. 894 In the second place and in any event, it should be noted that the applicants’ line of argument is based on an incorrect analysis of the regulatory regimes at issue. As was held in paragraphs 509 to 563 above, except as regards the coordination of the FSC in Thailand between 20 July 2005 and 14 February 2006, the applicants have failed to establish that their conduct in third countries was the result of State coercion. As regards that coordination, the applicants have established the existence of State coercion. That coordination does not therefore form part of the single and continuous infringement and cannot therefore result in a penalty for the applicants. Consequently, it cannot be taken into account as part of the mitigating circumstance regarding the impact of the rules of third countries on their conduct. 895 As regards the applicants’ reference to Commission Decision C(2008) 5955 final of 15 October 2008 relating to a proceeding under Article [101 TFEU] (Case COMP/39188 – Bananas), it is sufficient to note that the mere fact that the Commission has in its previous decisions granted a certain rate of reduction for specific conduct does not imply that it is required to grant the same proportionate reduction when assessing similar conduct in a subsequent administrative procedure (see judgment of 6 May 2009, KME Germany and Others v Commission, T‑127/04, EU:T:2009:142, paragraph 140 and the case-law cited). The applicants cannot therefore rely on the reduction in the amount of the fines granted in that other case. 896 In those circumstances, it must be held that the Commission did not err in setting the general reduction of 15%. 897 Secondly, in recitals 1258, 1259, 1268, 1271, 1274, 1278 and 1279 of the contested decision, the Commission rejected the applicants’ arguments based on their allegedly passive role in the single and continuous infringement, their legitimate expectations arising from a decision of the Danish competition authority of 2002 and the limited nature of the effects and implementation of the single and continuous infringement. By contrast, in recital 1258 of the contested decision, the Commission granted the applicants, Air Canada and Lan Cargo a reduction of 10% of the basic amount of the fine on account of their substantially limited involvement in that infringement. 898 The applicants claim that those assessments are vitiated by three errors, which the Court will examine in turn. 899 First, as regards the claim that the 10% reduction in the basic amount of the fine granted to the applicants on account of their limited participation in the single and continuous infringement was insufficient, it should be borne in mind that, in recital 1258 of the contested decision, the Commission, in assessing the limited nature of the participation in the single and continuous infringement of the applicants, Lan Airlines and Air Canada, took account of the fact that they had ‘not [participated] in all elements of th[at] infringement’. 900 The degree of participation in the single and continuous infringement of the applicants, Lan Airlines and Air Canada is described in recitals 882 and 883 of the contested decision. In those recitals, the Commission found that the applicants, Lan Airlines and Air Canada had participated directly in only one or two of the three elements of the single and continuous infringement, but that they could also be held liable for those aspects in which they had not directly participated on the ground that they were aware of them or could reasonably have foreseen them and were prepared to take the risk. 901 In paragraphs 698 to 712 above, it has been held that the Commission was wrong to ascribe to the applicants liability for the element of the single and continuous infringement relating to the refusal to pay commission. The Commission therefore overestimated the degree of their participation in the single and continuous infringement and, accordingly, rendered the contested decision unlawful in so far as it did not grant them a reduction of more than 10% in the basic amount of the fine on account of their limited participation in the single and continuous infringement. 902 Secondly, the argument relating to the decision-making practice designed to exempt alliances between carriers has already been examined and rejected in the context of the third part of the present plea (see paragraphs 367 and 368 above). 903 Thirdly, the complaint relating to the legitimate expectations which the applicants derived from a decision of the Danish competition authority of 2002 has already been examined and rejected in paragraph 682 above. 904 The present part of the plea must therefore be rejected, subject to the error found in paragraph 901 above as regards the 10% reduction granted to the applicants on account of their limited participation in the single and continuous infringement. 905 It follows from the foregoing that the present plea must be rejected, subject to the error found in paragraph 901 above and the error found in paragraph 774 above relating to the inclusion, in the value of sales, of revenues from freight services that the applicants had generated on non-EU EEA-Switzerland routes. 906 In the light of all the foregoing considerations, it is appropriate to uphold the sixth part of the third plea in so far as it concerns routes from Thailand to the EEA between 20 July 2005 and 14 February 2006 as regards the element of the single and continuous infringement relating to the FSC, the ninth part of the third plea in so far as it concerns the refusal to pay commission, the first part of the fifth plea in so far as it relates to the inclusion, in the value of sales, of turnover relating to non-EU EEA-Switzerland routes, and the fifth part of the fifth plea in so far as the Commission did not grant a reduction in the basic amount of the fine of more than 10% on account of the applicants’ limited participation in the single and continuous infringement. 907 Consequently, Article 1(1)(o), (p) and (q), (2)(o) and (p), (3)(o) and (p) and (4)(o), (p) and (q) of the contested decision must be annulled in so far as it finds that the applicants participated in the element of the single and continuous infringement relating to the refusal to pay commission. Article 1(2)(o) and (p) and (3)(o) and (p) of the contested decision must also be annulled in so far as it finds an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on routes from Thailand to the EEA between 20 July 2005 and 14 February 2006 as regards the element relating to the FSC. 908 It cannot, however, be held that those illegalities are such as to require the contested decision to be annulled in its entirety. Although the Commission made an error of assessment in ascribing to SAS and SAS Cargo the single and continuous infringement as regards the element relating to the refusal to pay commission and as regards the element relating to the FSC in so far as it concerns routes from Thailand to the EEA between 20 July 2005 and 14 February 2006, it must be held that it has not been established, in the present action, that the Commission erred in finding that the applicants had participated in that infringement. 909 Lastly, Article 3(n) to (r) of the contested decision must be annulled on the ground that it takes into account, for the purpose of calculating the fine, first, a reduction of 10% granted to the applicants on account of their limited participation in the single and continuous infringement and, secondly, as regards the value of sales, revenue from freight services that the applicants generated on non-EU EEA-Switzerland routes. 910 The remainder of the claim for annulment must be rejected. B. The claim for amendment of the amount of the fine imposed on the applicants 911 The applicants ask the Court, in essence, to exercise its unlimited jurisdiction significantly to reduce the amount of the fine imposed on them. 912 As a preliminary point, it is apparent from the application that, in essence, the applicants seek to rely, in support of the present head of claim, on all the arguments raised in support of the fifth plea in their application for annulment and request the Court to draw the appropriate inferences from the errors which it has found in relation to their participation in the single and continuous infringement. 913 The first four arguments concern the value of sales (first part of the fifth plea): – by their first argument, the applicants claim that the revenues from freight services that they generated on non-EU EEA-Switzerland routes should not be included in the value of sales; – by their second argument, the applicants submit that their turnover from inbound freight services should not be included in the value of sales; – by their third argument, the applicants maintain that account should be taken only of the value of the surcharges and not of the total price of freight services; – by their fourth argument, the applicants complain that the Commission included in the value of sales revenues generated on routes unrelated to the cartel at issue. 914 The fifth to ninth arguments concern the gravity factor (second part of the fifth plea): – by their fifth argument, the applicants submit that account should be taken of the fact that the cartel at issue is less grave and less harmful than coordination of the whole price; – by their sixth argument, the applicants submit that account should be taken of the fact that the gravity factor of 16% represents between 45 and 320% of the value of the surcharges; – by their seventh argument, the applicants submit that account should be taken of the fact that the cartel at issue did not operate to the detriment of the general public; – by their eighth argument, the applicants maintain that a single gravity factor of 16% does not sufficiently take account of their specific situation; – by their ninth argument, the applicants submit that account should be taken of the fact that the conduct in which they took part was public and generally in accordance with the rules applicable in third countries. 915 By their tenth argument, the applicants submit that account should be taken of the fact that their participation in the cartel did not begin on 13 December 1999 (third part of the fourth and fifth pleas). 916 By their eleventh argument, the applicants claim that account should be taken of the absence of repeated infringement (fourth part of the fifth plea). 917 The twelfth to fifteenth arguments relied on by the applicants in support of the present claims concern mitigating circumstances: – by their twelfth argument, the applicants maintain that their limited participation in the cartel at issue should be taken into account; – by their thirteenth argument, the applicants submit that the coordination of the surcharges was, in many cases, imposed by the regulatory regimes of third countries; – by their fourteenth argument, the applicants submit that account should be taken of the fact that alliances between carriers was a practice encouraged by the Commission; – by their fifteenth argument, the applicants submit that account should be taken of the fact that the decision of the Danish competition authority of 2002 created a legitimate expectation that the applicants’ compliance with the ASAs in third countries did not fall within the scope of EU competition rules. 918 The Commission contends that the applicants’ claims should be rejected and requests that the benefit of the general reduction of 50% and that of 15% be withdrawn from them in the event that the Court should find that the turnover from the sale of inbound freight services should not have been included in the value of sales. 919 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). 920 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). 921 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). 922 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). 923 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). 924 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 the present 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 taking into account all the relevant factual circumstances. 925 The Court considers that it is not appropriate, in order to determine the amount of the fine to be imposed on the applicants, to depart from the method of calculation followed by the Commission in the contested decision, which it has not previously determined to be vitiated by illegality, as follows from the examination of the fifth plea. 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). 926 In those circumstances, first of all, it must be observed, in particular in the light of the clarifications provided by the Commission in response to the questions put by the Court on 12 January, 2 March and 12 April 2021, that the Commission considered that the total value of sales was EUR 17 739 806 for SAS Consortium and EUR 238 196 616 for SAS Cargo and SAS. Those values included revenues of EUR 262 084 generated on non-EU EEA-Switzerland routes, which the Court held in paragraphs 768 to 774 above did not fall within the scope of the single and continuous infringement. That revenue must therefore be excluded from the values of sales, in accordance with the applicants’ first argument. 927 As regards the infringement period before May 2004 relied on against the applicants, like the Commission did in recital 1197 of the contested decision, it is necessary to take as a basis, on intra-EEA routes and on EU-Switzerland routes, values of sales amounting, respectively, to EUR 17 112 706 and EUR 627 100, taking into account only States which were already Contracting Parties to the EEA Agreement or members of the European Union before May 2004. 928 Moreover, it should be noted that the third argument, which relates to the inclusion of the full price of freight services in the value of sales, refers to the third complaint raised in the context of the first part of the fifth plea on which the applicants rely in support of the claim for annulment. The Court examined and rejected that complaint in paragraphs 807 to 817 above and nothing in the arguments put forward by the applicants in support of that complaint makes it possible to consider that the inclusion in the value of sales of the full price of freight services was such as to result in an inappropriate value of sales being used. On the contrary, excluding the price elements of freight services other than surcharges from the value of sales would have the effect of artificially minimising the economic importance of the single and continuous infringement. 929 As regards the second argument, which relates to the inclusion, in the value of sales, of turnover from the sale of inbound freight services, it must be observed that it refers to the second complaint raised in the context of the first part of the fifth plea on which the applicants rely in support of their claims for annulment. The Court has examined and rejected that complaint in paragraphs 775 to 806 above and nothing in the arguments put forward by the applicants in support of it makes it possible to consider that the inclusion in the value of sales of turnover from the sale of inbound freight services was such as to result in an inappropriate value of sales being used. On the contrary, excluding the turnover from the sale of inbound freight services from the value of sales would have prevented the imposition on the applicants of a fine which was a proper measure of the harm which their participation in the cartel at issue did to normal competition (see, to that effect, judgment of 28 June 2016, Portugal Telecom v Commission, T‑208/13, EU:T:2016:368, paragraph 236). 930 As regards the fourth argument, relating to the inclusion, in the value of sales, of revenue generated on routes unrelated to the cartel at issue, it is based, as is apparent from the examination of the claim for annulment (see paragraphs 818 to 822 above), on an erroneous premiss, namely that the Commission was not entitled to ascribe to the applicants liability for the single and continuous infringement on intra-EEA routes, EU-third country routes, EU-Switzerland routes and non-EU EEA-third country routes. It must, therefore, be rejected. 931 That having been noted, it is apparent from the Commission’s answers to the question put to it by the Court on 12 April 2021 that the values of sales referred to in paragraphs 926 and 927 above exclude the applicants’ turnover on routes operated exclusively within Denmark, Sweden and Norway respectively (‘the internal routes’). 932 When questioned by the Court as to the compatibility of such an exclusion with the principle of equal treatment and point 13 of the 2006 Guidelines, first, the Commission observed that, according to the case-law subsequent to the Decision of 9 November 2010, the excluded revenues referred to in paragraph 931 above did indeed concern sales relating directly or indirectly to the infringement, within the meaning of point. Secondly, it stated that it was possible that such ‘internal sales’ had not been deducted from the value of sales applied to the other incriminated carriers, since it had not invited those carriers to do so during the administrative procedure when it had asked them about their turnover for the purpose of calculating the amount of the fine, and since those carriers, with the exception of the applicants, had not stated in their replies that they had chosen to exclude such ‘internal sales’. 933 Nevertheless, the Commission considers, in essence, that the Court should not take account of the turnover generated by the applicants on internal routes in the exercise, as the case may be, of its unlimited jurisdiction, since the fine imposed on the applicants remains appropriate and proportionate, even without taking account of that turnover. Moreover, the other incriminated carriers that might have included such internal sales in the turnover figures communicated to the Commission during the administrative procedure cannot benefit from an unlawful act committed in favour of another. 934 When asked to respond to the Commission’s replies, the applicants submitted, as did the Commission, that there was no need to include, in their values of sales, the turnover that they had generated on the internal routes. First, there is no resulting inequality of treatment to the detriment of the other incriminated carriers, since those carriers, which had not referred to making ‘internal sales’ during the administrative procedure, were not in a situation comparable to that of the applicants. Secondly, only the exempted bilateral cooperation with Lufthansa had an ‘influence’ on the services that they provided on the internal routes. The applicants also rely on the judgments of the Court of Justice delivered in connection with Commission Decision C(2012) 1959 final of 28 March 2012 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39462 – Freight forwarding). 935 In the present case, Article 1(1) of the contested decision holds the incriminated carriers liable for an infringement of Article 101 TFEU and Article 53 of the EEA Agreement as regards routes between airports within the EEA. Unlike paragraphs 2 to 4 of that article, which relate to routes that are necessarily international in nature, the wording of paragraph 1 is to be understood as covering any route between airports, provided that both the point of origin and the point of destination are located in the EEA. It follows that Article 1(1) covers conduct taking place both on routes between Member States or Contracting Parties to the EEA Agreement and on routes operated within a single Member State or a single contracting party. 936 In those circumstances, the turnover generated by the incriminated carriers on routes operated within a single Member State or a single contracting party clearly falls within the scope of the single and continuous infringement, and it would not be a fair assessment of the economic importance of that infringement and of the role played by each of the incriminated carriers in that regard if that turnover were not to be taken into account for the purposes of calculating the amount of the fine. 937 Furthermore, it should be noted that the requests for information which the Commission sent to the incriminated carriers during the administrative procedure and by which it sought, inter alia, to ascertain their turnover on intra-EEA routes refer to ‘routes where the airports of origin and destination were both within the EEA’, without specifying that those routes needed to be cross-border. In the contested decision, the Commission states in recital 1197, as regards the value of sales, that ‘the [intra-EEA] turnover [was] within the then [18 of the 28] Contracting Parties to the EEA agreement’ and that ‘the [EU-Switzerland] turnover [was] on routes between the then [15 of the 25] Member States and Switzerland’. The use of the words ‘within’ in one case and the word ‘between’ in the other shows the Commission’s intention, in the first case, not to distinguish between domestic and cross-border routes, otherwise it would have stated that the intra-EEA turnover was generated on the routes ‘between’ the Contracting Parties. 938 The foregoing interpretation reflects the Commission’s intention as understood by the incriminated carriers, as is borne out by the fact that the applicants expressly maintained, during the administrative procedure, that sales on internal routes should be excluded from the value of their sales on intra-EEA routes. The request for the exclusion of internal routes makes sense only if, in principle, it is accepted that they were included in the intra-EEA routes. 939 It follows that the turnover generated by the incriminated carriers on intra-EEA routes within a single Contracting Party was not included in the value of sales inadvertently, as the Commission maintains. That turnover was included in the value of sales used by the Commission in the contested decision on the basis of the methodology it followed, and reflected the geographic scope of the single and continuous infringement, as is apparent from Article 1(1) of the contested decision. 940 Therefore, with a view also to ensure equal treatment between the incriminated carriers that brought an action against the contested decision, the Court must reinstate, in the values of sales referred to in paragraphs 926 and 927 above, the turnover generated by the applicants on the internal routes, which amounts to EUR 7 991 282. 941 Next, it should be noted that, for the reasons set out in recitals 1198 to 1212 of the contested decision, the single and continuous infringement merits a gravity factor of 16%. 942 The fifth to ninth arguments do not prove the contrary. Those arguments refer, in essence, to complaints put forward in the context of the second part of the fifth plea raised by the applicants in support of the claim for annulment. However, the Court examined and rejected that part in paragraphs 824 to 864 above and there is nothing to support the view that those arguments justify a gravity factor of less than 16%. 943 As regards, in particular, the alleged lack of effects of the single and continuous infringement on the general public, referred to in the seventh argument put forward in support of the present claims, it should be added that the amount of a fine cannot be regarded as inappropriate solely because it does not reflect the economic harm that has been or may have been caused by the alleged infringement (judgment of 29 February 2016, Schenker v Commission, T‑265/12, EU:T:2016:111, paragraph 287). That argument does not therefore justify a reduction in the gravity factor. 944 By contrast, the Court considers that the gravity factor must be reduced in order to take account of the fact that the coordination relating to the FSC on routes from Thailand to the EEA between 20 July 2005 and 14 February 2006 did not, as regards the FSC, infringe Article 101 TFEU and Article 53 of the EEA Agreement. That leads to a reduction in the scope of that element. In so far as that reduction is of limited duration and does not concern flights from the EEA to Thailand, the Court considers that it is sufficient to reduce the gravity factor from 16% to 15.7% to take account of this. 945 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. 946 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). 947 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. 948 It follows that, for the same reasons as those set out in recitals 1198 to 1212 of the contested decision and in paragraph 944 above, the Court considers that an additional amount of 15.7% is appropriate. 949 It is also necessary to apply the method used by the Commission to calculate the additional amount applied to each of the three applicants, as set out in recitals 1221 to 1229 of the contested decision. 950 Moreover, it is apparent from recitals 1214 to 1217 of the contested decision that the Commission relied, as regards the duration of the applicants’ participation in the single and continuous infringement, on the following multiplication factors: – 45⁄12 for SAS, 48⁄12 for SAS Cargo and 4 for SAS Consortium on the intra-EEA routes; – 19⁄12 for SAS and SAS Cargo on EU-third country routes; – 38⁄12 for SAS and SAS Cargo and 16⁄12 for SAS Consortium on EU-Switzerland routes; – 8⁄12 for SAS and SAS Cargo on non-EU EEA-third country routes. 951 Since the Court has not found any errors in the determination of the duration of the single and continuous infringement, it is necessary to reject the tenth argument and to apply the multiplication factors set out in the preceding paragraph. 952 The basic amount of the fine must therefore be set at EUR 19 953 394.43 for SAS Consortium, EUR 92 200 925.36 for SAS Cargo and EUR 93 345 061.65 for SAS. 953 As regards the general 50% reduction, the Commission’s request that the benefit of that reduction be withdrawn from the applicants cannot be granted. As is apparent from the defence, that request presupposes that the Court holds that the turnover from the sale of inbound freight services could not be included in the values of sales. The Court refused to do so in paragraph 929 above. 954 Consequently, the basic amount, after application of the general reduction of 50%, which applies only to the basic amount in so far as it relates to non-EU EEA-third country routes and EU-third country routes (see recital 1241 of the contested decision), which the applicants have not effectively challenged in the context of the application for annulment and which is not inappropriate, must be fixed, after rounding, at EUR 19 900 000 for SAS Consortium, EUR 65 000 000 for SAS Cargo and EUR 65 000 000 for SAS. 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 the amount is rounded to the first three digits. That method is objective, affords all the incriminated carriers which brought actions against the contested decision the benefit of a reduction and avoids any unequal treatment (see, to that effect, judgment of 27 February 2014, InnoLux v Commission, T‑91/11, EU:T:2014:92, paragraph 166). 955 As regards the eleventh argument, relating to the absence of repeated infringement, it must be borne in mind that the Commission, in recitals 1243 to 1245 of the contested decision, imposed on SAS Cargo and SAS Consortium an increase of 50% in the basic amount of the fine on account of repeated infringement. The applicants’ line of argument overlaps with that put forward in support of the fourth part of the fifth plea relied upon in support of the claim for annulment, which the Court examined and rejected in paragraphs 868 to 885 above, and there is no reason to consider that the applicants’ repeated infringement justifies an increase in the basic amount of the fine of less than 50%. 956 Lastly, as regards the adjustments to the basic amount of the fine, it should be borne in mind that the applicants benefited from the general reduction of 15%, which they claim is insufficient in the context of the fifth part of the fifth plea in support of the claim for annulment and in the context of the thirteenth to fifteenth arguments. Those arguments are the same as those put forward in the context of the fifth part of the fifth plea, which the Court examined and rejected in paragraphs 886 to 904 above, and nothing in those arguments is capable of justifying an additional reduction on account of the encouragement arising from certain regulatory regimes or from relevant practices or assurances. Conversely, the Commission’s request that the benefit of that reduction be withdrawn from the applicant cannot be granted for reasons similar to those set out in paragraph 953 above. 957 Moreover, in recitals 1258 and 1259 of the contested decision, the Commission granted the applicants a 10% reduction in the basic amount of the fine on account of their limited participation in the single and continuous infringement, which the applicants consider insufficient in their twelfth argument in support of the present claims. It should be borne in mind that the Commission was wrong to ascribe to the applicants liability for the element of the single and continuous infringement relating to the refusal to pay commission and that it therefore overestimated the extent of their participation in the single and continuous infringement. It was therefore inappropriate to grant the applicants a reduction of only 10% on that basis. 958 In those circumstances, in view of the limited period during which the incriminated carriers coordinated the refusal to pay commission in relation to the duration of the single and continuous infringement as a whole, the Court considers that a reduction of 21% on account of the applicants’ limited participation in the single and continuous infringement is appropriate. 959 By contrast, the Court does not consider that the exclusion, from the body of evidence, of the contacts described in recitals 196, 223, 406, 415, 443 and 517 of the contested decision justifies an additional reduction being granted to the applicants on that basis. Those contacts concerned exchanges relating to the FSC which took place in the context of the WOW alliance (recitals 223 and 517), ACCS (recital 443) and, more generally, at head-office level (recitals 196, 406 and 415). First, it must be pointed out that, despite the exclusion of those contacts from the body of evidence on which the Commission could rely, the applicants’ participation in each of those three types of exchanges and, a fortiori, in the element of the single and continuous infringement relating to the FSC in general remains amply substantiated. Secondly, it should be noted that none of those exchanges concerns the SSC. Granting the applicants a reduction of more than 21% on account of their limited participation in the single and continuous infringement would therefore be inappropriate. 960 Furthermore, it must be held that the 15% leniency reduction granted to the applicants remains appropriate. 961 In the light of all the foregoing considerations, the amount of the fine imposed on the applicants 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 15.7% to the value of sales made by the applicants in 2005 on intra-EEA routes, EU-third country routes, non-EU EEA-third country routes and EU-Switzerland routes, then, in respect of the duration of the infringement, the multiplication factors described in paragraph 950 above, as adapted according to the findings made in paragraph 951 above, and, lastly, an additional amount of 15.7%, resulting in an intermediate amount of EUR 19 900 000 for SAS Consortium, EUR 92 200 925.36 for SAS Cargo and EUR 93 345 061.65 for SAS. After applying the general reduction of 50%, that amount, rounded, is EUR 19 900 000 for SAS Consortium, EUR 65 000 000 for SAS Cargo and EUR 65 000 000 for SAS. Next, after an increase of 50% in the basic amount for repeated infringement, as regards SAS Consortium and SAS Cargo, the application of the general reduction of 15% and an additional reduction of 21% on account of the applicants’ limited participation in the single and continuous infringement, the amount must be fixed at EUR 22 686 000 for SAS Consortium, at EUR 74 100 000 for SAS Cargo and at EUR 43 647 500 for SAS. Lastly, those amounts must be reduced by 15% for leniency, resulting in a fine of a final amount of EUR 19 283 100 for SAS Consortium, EUR 62 985 000 for SAS Cargo and EUR 37 100 375 for SAS. 962 As regards the amounts of the fines for which the applicants are held jointly and severally liable, the Court considers that there is no need to depart from the method described by the Commission in recitals 1226 and 1231 to 1234 of the contested decision. The fine imposed on SAS Consortium alone must therefore be set at EUR 7 030 618, the fine imposed on SAS Cargo and SAS Consortium jointly and severally must be set at EUR 5 937 909, the fine imposed on SAS Cargo, SAS Consortium and SAS jointly and severally must be set at EUR 6 314 572, the fine imposed on SAS Cargo and SAS jointly and severally must be set at EUR 29 045 427 and the fine imposed on SAS Cargo must be set at EUR 21 687 090. IV. Costs 963 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. 964 In the present case, the applicants have been successful in respect of a substantial part of their claims. Accordingly, it is fair in the circumstances of the case to decide that the applicants are to bear one quarter of their own costs and that the Commission is to bear its own costs and three quarters of the applicants’ costs. On those grounds THE GENERAL COURT (Fourth Chamber, Extended Composition) hereby: 1. Annuls Article 1(1)(o), (p) and (q), (2)(o) and (p), (3)(o) and (p), and (4)(o), (p) and (q) 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 SAS AB, SAS Cargo Group A/S and Scandinavian Airlines System Denmark-Norway-Sweden participated in the component of the single and continuous infringement relating to the refusal to pay commission on surcharges; 2. Annuls Article 1(2)(o) and (p) in so far as it finds an infringement of Article 101 TFEU on routes from Thailand to the European Union between 20 July 2005 and 14 February 2006 as regards the element relating to the FSC, and Article 1(3)(o) and (p), in so far as it finds an infringement of Article 53 of the EEA Agreement on routes from Thailand to the European Economic Area between 20 July 2005 and 14 February 2006 as regards the element relating to the FSC; 3. Annuls Article 3(n) to (r); 4. The amount of the fine imposed on Scandinavian Airlines System Denmark-Norway-Sweden is set at EUR 7 030 618, the fine imposed on SAS Cargo Group and Scandinavian Airlines System Denmark-Norway-Sweden jointly and severally must be set at EUR 5 937 909, the fine imposed on SAS Cargo Group, Scandinavian Airlines System Denmark-Norway-Sweden and SAS jointly and severally must be set at EUR 6 314 572, the fine imposed on SAS Cargo Group and SAS jointly and severally must be set at EUR 29 045 427 and the fine imposed on SAS Cargo Group must be set at EUR 21 687 090; 5. Dismisses the action as to the remainder; 6. Orders the European Commission to bear its own costs and three quarters of the costs of SAS Cargo Group, Scandinavian Airlines System Denmark-Norway-Sweden and SAS; 7. Orders SAS Cargo Group, Scandinavian Airlines System Denmark-Norway-Sweden and SAS to bear one quarter of their 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. The action challenging the Decision of 9 November 2010 before the Court D. The contested decision II. Procedure and forms of order sought III. Law A. The claim for annulment 1. The first plea in law, alleging infringement of the rights of the defence and the principle of equality of arms, in so far as they were refused access to evidence, both inculpatory and exculpatory (a) The alleged inculpatory evidence (b) The alleged exculpatory evidence (c) Conclusion 2. The second plea in law, alleging infringement of the right to be heard and lack of jurisdiction (a) The first part of the second plea, alleging infringement of the right to be heard and a lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes (1) The right to be heard (2) 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 second part of the second plea in law, relating to non-EU EEA-Switzerland routes 3. The third plea in law, alleging an error of assessment in relation to the conduct in which the applicants were involved and the conclusion that that conduct proved their participation in, or awareness of, the single and continuous infringement (a) The first part of the plea, alleging a number of illegalities in the finding of a single and continuous infringement of a worldwide nature (1) The first complaint, alleging breach of the obligation to state reasons and erroneous findings as regards the worldwide nature of the single and continuous infringement (2) The second complaint, alleging erroneous findings regarding the single nature of the infringement (3) The third complaint, alleging erroneous findings as regards the continuous nature of the infringement (b) The second part of the plea, alleging errors in the assessment of the conduct relating to the bilateral alliance with Lufthansa (c) The third part of the plea, alleging errors in the assessment of the email exchange of December 1999 in the context of the Star Cargo alliance (d) The fourth part of the plea, alleging errors in the assessment of the conduct relating to the WOW alliance (1) The first complaint, alleging errors in the finding that the contacts between members of the WOW alliance were illegitimate (i) Infringement of the rights of the defence (ii) The scope of the WOW alliance and its actual implementation (iii) The scope of the contacts within the WOW alliance (2) The second complaint, alleging wrongful omission to examine the compatibility of contacts within the WOW alliance with Article 101 TFEU (i) Retroactive and discriminatory application of a new interpretation of the rules applicable to airline alliances (ii) The failure to take into account the applicants’ statements relating to the application of Article 101(3) TFEU (3) The third complaint, alleging errors relating to the inclusion of contacts within the WOW alliance in the scope of the single and continuous infringement (e) The eighth part of the plea, alleging errors relating to the inclusion in the single and continuous infringement of disparate local events that took place in a few countries (f) The fifth part of the plea, alleging errors relating to the inclusion in the single and continuous infringement of contacts relating to block space agreements (g) The sixth part of the plea, alleging errors in the assessment of contacts in third countries (1) The first complaint, alleging breach of the principles of sovereignty and non-interference (2) The second complaint, alleging errors in the assessment of the State coercion to which the applicants claim to have been subjected in a number of third countries (i) Hong Kong (ii) Japan (iii) Other third countries (3) The third complaint, alleging errors in the application of Article 101(1) TFEU to conduct relating to inbound routes prior to 1 May 2004 and of Article 8 of the EC-Switzerland Air Transport Agreement to conduct relating to EU-Switzerland routes prior to 1 June 2002 (4) The fourth complaint, alleging errors in the assessment of the conduct that took place in Switzerland (5) The fifth complaint, alleging an error relating to the inclusion in the single and continuous infringement of the applicants’ conduct in third countries (h) The seventh part of the plea, alleging errors in the assessment of speculation on the part other carriers as to the applicants’ conduct (i) The ninth part of the plea, alleging errors in the assessment of the applicants’ knowledge of the conduct of the other incriminated carriers (1) The surcharges (2) Refusal to pay commission (j) The tenth part of the plea, alleging errors in the overall assessment of the body of evidence relied on by the Commission 4. The fourth plea in law, alleging infringement of Article 266 TFEU, the right to property enshrined in Article 17 of the Charter and the obligation to state reasons (a) The first part of the plea, alleging infringement of Article 266 TFEU (b) The second part of the plea, alleging infringement of the right to property enshrined in Article 17 of the Charter (c) The third part of the plea, alleging breach of the duty to state reasons 5. The fifth plea in law, alleging errors in the determination of the amount of the fine imposed on the applicants (a) The first part of the plea, alleging errors in the calculation of the value of sales (1) Inclusion, in the value of sales, of turnover from the sale of airfreight services on non-EU EEA-Switzerland routes (2) Inclusion, in the value of sales, of turnover from sales that ‘took place outside the EEA’ and the general reduction of 50% (3) Inclusion, in the value of sales, of the total price of freight services rather than only the surcharges (4) The inclusion, in the value of sales, of sales on routes unrelated to the ‘handful of routes’ on which the applicants participated in local and isolated incidents (b) The second part of the plea, alleging errors in the assessment of the gravity of the single and continuous infringement (c) The third part of the plea, alleging errors in the assessment of the duration of the single and continuous infringement (d) The fourth part of the plea, alleging errors in the increase of the basic amount on account of repeated infringement (e) The fifth part of the plea, alleging errors in the consideration of mitigating circumstances B. The claim for amendment of the amount of the fine imposed on the applicants IV. Costs * Language of the case: English.