62017TJ0340
JUDGMENT OF THE GENERAL COURT (Fourth Chamber, Extended Composition)
30 March 2022 (
*1
)
(Competition – Agreements, decisions and concerted practices – Market for airfreight – Decision finding an infringement of 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 – Coordination of elements of the price of airfreight services (fuel surcharge, security surcharge, payment of commission on surcharges) – Exchange of information – Territorial jurisdiction of the Commission – Article 266 TFEU – Limitation period – Rights of the defence – Non-discrimination – Single and continuous infringement – Amount of the fine – Value of sales – Gravity of the infringement – Additional amount – Mitigating circumstances – Encouragement of the anticompetitive conduct by public authorities – Substantially limited involvement – Proportionality – Unlimited jurisdiction)
In Case T‑340/17,
Japan Airlines Co. Ltd, established in Tokyo (Japan), represented by J.‑F. Bellis and K. Van Hove, lawyers, and R. Burton, Solicitor,
applicant,
v
European Commission, represented by A. Dawes, G. Koleva and C. Urraca Caviedes, acting as Agents, and by J. Holmes QC,
defendant,
APPLICATION under Article 263 TFEU for annulment 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 relates to the applicant and, in the alternative, for a reduction in the amount of the fine imposed on the applicant,
THE GENERAL COURT (Fourth Chamber, Extended Composition),
composed of H. Kanninen (Rapporteur), President, J. Schwarcz, C. Iliopoulos, D. Spielmann and I. Reine, Judges,
Registrar: L. Ramette, Administrator,
having regard to the written part of the procedure and further to the hearing on 3 July 2019,
gives the following
Judgment
I. Background to the dispute
1
The applicant, Japan Airlines Co. Ltd, formerly Japan Airlines International Co. Ltd, is an air transport company. At the material time, the applicant was a subsidiary of Japan Airlines Corp., which has been absorbed by the applicant, its legal successor. It is active on the market for airfreight (‘freight’) services through one of its divisions, named JAL Cargo.
2
In the freight sector, airlines provide for the carriage of cargo by air (‘carriers’). As a general rule, carriers supply freight services to freight forwarders, who arrange the transport of that cargo on behalf of shippers. In return, those freight forwarders pay the carriers a price consisting, on the one hand, of rates calculated on a per-kilogram basis and negotiated either on a long-term basis (typically one season, namely six months) or on an ad-hoc basis, and, on the other hand, of various surcharges, which are intended to cover certain costs.
3
There are four different types of carrier: first, those which exclusively operate dedicated freighter airplanes, second, those with cargo capacity on passenger flights, third, those with both dedicated freighter airplanes and with cargo capacity on passenger flights (combination airlines) and, fourth, integrators with dedicated freighter airplanes providing both integrated express delivery services and general cargo services.
4
No carrier is able to serve all major cargo destinations in the world with sufficient frequency, and therefore agreements among carriers enabling them to increase their network coverage or improve their schedules have become common, including in the context of broader commercial alliances between carriers. At the material time, those alliances included inter alia the WOW alliance, which brought together Deutsche Lufthansa AG (‘Lufthansa’), SAS Cargo Group A/S (‘SAS Cargo’), Singapore Airlines Cargo Pte Ltd (‘SAC’) and the applicant.
A. Administrative procedure
5
On 7 December 2005, the Commission of the European Communities received an application for immunity under the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) lodged by Lufthansa and its subsidiaries, Lufthansa Cargo AG and Swiss International Air Lines AG (‘Swiss’). The application alleged that extensive anticompetitive contacts were being maintained between a number of carriers with regard, inter alia, to:
–
the fuel surcharge (‘FSC’), which had been introduced to tackle rising fuel costs;
–
the security surcharge (‘SSC’), which had been introduced to address the costs of certain security measures imposed following the terrorist attacks of 11 September 2001.
6
On 14 and 15 February 2006, the Commission carried out unannounced inspections at the premises of a number of carriers pursuant to Article 20 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1).
7
Following the inspections, a number of carriers, including the applicant, made an application under the 2002 notice referred to in paragraph 5 above.
8
On 19 December 2007, after sending a number of requests for information, the Commission addressed a statement of objections to 27 carriers, including the applicant (‘the Statement of Objections’). It stated that those carriers had infringed Article 101 TFEU, Article 53 of the Agreement on the European Economic Area (EEA) and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (‘the EC-Switzerland Air Transport Agreement’) by participating in a cartel relating, in particular, to the FSC, the SSC and a refusal to pay commission on surcharges (‘the refusal to pay commission’).
9
In response to the Statement of Objections, the addressees submitted written observations.
10
An oral hearing was held from 30 June to 4 July 2008.
B. The Decision of 9 November 2010
11
On 9 November 2010, the Commission adopted Decision C(2010) 7694 final relating to a proceeding under Article 101 [TFEU], Article 53 of the EEA Agreement and Article 8 of the [EC-Switzerland Air Transport Agreement] (Case COMP/39258 – Airfreight) (‘the Decision of 9 November 2010’). That decision is addressed to 21 carriers (‘the carriers incriminated in the Decision of 9 November 2010’), namely:
–
Air Canada;
–
Air France-KLM (‘AF-KLM’);
–
Société Air France (‘AF’);
–
Koninklijke Luchtvaart Maatschappij NV (‘KLM’);
–
British Airways plc;
–
Cargolux Airlines International SA (‘Cargolux’);
–
Cathay Pacific Airways Ltd (‘CPA’);
–
Japan Airlines Corp.;
–
the applicant;
–
Lan Airlines SA (‘Lan’);
–
Lan Cargo SA;
–
Lufthansa Cargo;
–
Lufthansa;
–
Swiss;
–
Martinair Holland NV (‘Martinair’);
–
Qantas Airways Ltd (‘Qantas’);
–
SAS AB;
–
SAS Cargo;
–
Scandinavian Airlines System Denmark-Norway-Sweden (‘SAS Consortium’);
–
SAC;
–
Singapore Airlines Ltd (‘SIA’).
12
The objections raised provisionally against the other addressees of the Statement of Objections were abandoned (‘the non-incriminated carriers’).
13
The grounds of the Decision of 9 November 2010 described a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement, covering the territory of the EEA and of Switzerland, by which the carriers incriminated in the Decision of 9 November 2010 had coordinated their behaviour as regards the pricing of freight services.
14
The operative part of the Decision of 9 November 2010, in so far as it related to the applicant, read as follows:
‘Article 2
The following undertakings infringed Article 101 of the TFEU by participating in an infringement that comprised both agreements and concerted practices through which they coordinated various elements of price to be charged for [freight] services on routes between airports within the European Union and airports outside the EEA, for the following periods:
…
h)
[Japan Airlines Corp.] from 1 May 2004 until 14 February 2006;
i)
[the applicant] from 1 May 2004 until 14 February 2006;
…
Article 3
The following undertakings infringed Article 53 of the EEA Agreement by participating in an infringement that comprised both agreements and concerted practices through which they coordinated various elements of price to be charged for [freight] services on routes between airports in countries that are Contracting Parties of the EEA Agreement but not Member States and third countries, for the following periods:
…
h)
[Japan Airlines Corp.] from 19 May 2005 until 14 February 2006;
i)
[the applicant] from 19 May 2005 until 14 February 2006;
…
Article 5
For the infringements referred to in Articles 1 to 4 [of the Decision of 9 November 2010], the following fines are imposed:
…
h)
[Japan Airlines Corp.] and [the applicant] jointly and severally: EUR 35700000;
…
Article 6
The undertakings listed in Articles 1 to 4 shall immediately bring to an end the infringements referred to in those Articles, insofar as they have not already done so.
They shall refrain from repeating any act or conduct described in Articles 1 to 4, and from any act or conduct having the same or similar object or effect.’
C. Action challenging the Decision of 9 November 2010 before the Court
15
By application lodged at the Court Registry on 24 January 2011, the applicant brought an action seeking the annulment of the Decision of 9 November 2010, in so far as that decision concerned it and, in the alternative, a reduction in the fine imposed on it and on Japan Airlines Corp. The other carriers incriminated in the Decision of 9 November 2010, with the exception of Qantas, also brought actions against that decision before the Court.
16
By judgments of 16 December 2015, Air Canada v Commission (T‑9/11, not published, EU:T:2015:994), Koninklijke Luchtvaart Maatschappij v Commission (T‑28/11, not published, EU:T:2015:995), Japan Airlines v Commission (T‑36/11, not published, EU:T:2015:992), Cathay Pacific Airways v Commission (T‑38/11, not published, EU:T:2015:985), Cargolux Airlines v Commission (T‑39/11, not published, EU:T:2015:991), Latam Airlines Group and Lan Cargo v Commission (T‑40/11, not published, EU:T:2015:986), Singapore Airlines and Singapore Airlines Cargo Pte v Commission (T‑43/11, not published, EU:T:2015:989), Deutsche Lufthansa and Others v Commission (T‑46/11, not published, EU:T:2015:987), British Airways v Commission (T‑48/11, not published, EU:T:2015:988), SAS Cargo Group and Others v Commission (T‑56/11, not published, EU:T:2015:990), Air France-KLM v Commission (T‑62/11, not published, EU:T:2015:996), Air France v Commission (T‑63/11, not published, EU:T:2015:993) and Martinair Holland v Commission (T‑67/11, EU:T:2015:984), the Court annulled, in whole or in part, the Decision of 9 November 2010 in so far as it concerned, respectively, Air Canada, KLM, the applicant and Japan Airlines Corp., CPA, Cargolux, Latam Airlines Group SA (formerly Lan Airlines) and Lan Cargo, SAC and SIA, Lufthansa, Lufthansa Cargo and Swiss, British Airways, SAS Cargo, SAS Consortium and SAS, AF-KLM, AF and Martinair. The Court found that the decision was vitiated by a defective statement of reasons.
17
In that regard, the Court held, in the first place, that the Decision of 9 November 2010 was vitiated by contradictions between the grounds and the operative part thereof. The grounds of the decision described a single and continuous infringement relating to all routes covered by the cartel, in which all the carriers incriminated in the Decision of 9 November 2010 had participated. By contrast, the operative part of that decision identified either four separate single and continuous infringements, or 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, participated directly in the unlawful conduct referred to in each of those articles or were aware of the collusion on those routes and accepted the risk. Neither of those two readings of the operative part of the Decision of 9 November 2010 was consistent with the grounds for the decision.
18
The Court also rejected as incompatible with the grounds of the Decision of 9 November 2010 the alternative reading of the operative part proposed by the Commission, which was that the failure to mention some of the carriers incriminated in the Decision of 9 November 2010 in Articles 1, 3 and 4 of the decision could be explained by the fact that those carriers did not operate the routes referred to in those articles, and that those articles need not be interpreted as referring to separate single and continuous infringements.
19
In the second place, the Court held that the grounds of the Decision of 9 November 2010 contained significant internal inconsistencies.
20
In the third place, after noting that neither of the two possible readings of the operative part of the Decision of 9 November 2010 was consistent with the grounds thereof, the Court considered whether, in the context of at least one of those two possible readings, the internal contradictions of that decision were likely to undermine the applicant’s rights of defence and prevent the Court from conducting its review. As regards the first reading, namely that there were four separate single and continuous infringements, first of all, the Court held that the applicant had not been in a position to understand to what extent the evidence set out in the grounds and relating to the existence of a single and continuous infringement was liable to establish the existence of the four separate infringements found in the operative part, or to contest the sufficiency of that evidence. Second, it held that the applicant had not been able to understand the line of reasoning that had led the Commission to find it liable for an infringement, including in respect of routes which it did not operate within the parameters defined by each article of the Decision of 9 November 2010.
D. Contested decision
21
On 20 May 2016, following the annulment ordered by the Court, the Commission sent a letter to the carriers incriminated in the Decision of 9 November 2010 which had brought an action against that decision before the Court to inform them that its Directorate-General (DG) for Competition intended to propose to it the adoption of a new decision in which it would find that they had participated in a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement on all of the routes referred to in that decision.
22
The recipients of the Commission’s letter referred to in paragraph 21 above were invited to make known their views on the Commission DG for Competition’s intended decision within one month. All recipients, including the applicant, availed themselves of that possibility.
23
On 17 March 2017, the Commission adopted Decision C(2017) 1742 final relating to a proceeding under Article 101 [TFEU], Article 53 of the EEA Agreement and Article 8 of the [EC-Switzerland Air Transport Agreement] (Case AT.39258 – Airfreight) (‘the contested decision’). That decision is addressed to 19 carriers (‘the incriminated carriers’), namely:
–
Air Canada;
–
AF-KLM;
–
AF;
–
KLM;
–
British Airways;
–
Cargolux;
–
CPA;
–
the applicant;
–
Latam Airlines Group;
–
Lan Cargo;
–
Lufthansa Cargo;
–
Lufthansa;
–
Swiss;
–
Martinair;
–
SAS;
–
SAS Cargo;
–
SAS Consortium;
–
SAC;
–
SIA.
24
In the contested decision, no objections are maintained against the other addressees of the Statement of Objections.
25
The grounds of the contested decision describe a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement, by which the incriminated carriers coordinated their behaviour as regards the pricing of freight services worldwide through the FSC, the SSC and the payment of commission on surcharges.
26
In the first place, in Section 4.1 of the contested decision, the Commission described the ‘basic principles and structure of the cartel’. In recitals 107 and 108 of that decision, the Commission stated that the investigations had uncovered a worldwide cartel based on a network of bilateral and multilateral contacts over a long period of time among competitors regarding the conduct which they had decided on, intended to adopt, or contemplated adopting with regard to various elements of the charges for freight services, namely the FSC, the SSC and the refusal to pay commission. It stated that the common objective of that network of contacts was to coordinate competitors’ pricing behaviour or to reduce uncertainty with regard to their pricing policies (‘the cartel at issue’).
27
According to recital 109 of the contested decision, the objective of the coordinated application of the FSC was to ensure that carriers throughout the world imposed a flat-rate surcharge per kilo for all relevant shipments. A complex network of mainly bilateral contacts among carriers was established to coordinate and monitor the application of the FSC, the precise date of application often, according to the Commission, being decided at local level usually with the principal local carrier taking the lead and others following. That coordinated approach was extended to the SSC and to the refusal to pay commission, with the result that the latter became net revenue for the carriers and created an additional incentive for them to continue with the coordination relating to the surcharges.
28
According to recital 110 of the contested decision, senior management in the head offices of a number of airlines were either directly involved in competitor contacts or regularly informed about them. In the case of the surcharges, the responsible head-office employees were in contact with each other when a change to the surcharge level was imminent. The refusal to pay a commission on surcharges was also confirmed on a number of occasions during contacts at head-office level. There were frequent contacts also in a number of local markets, partly to better implement the instructions received from the head offices and to adapt them to the local market conditions, partly to coordinate and implement local initiatives. In this latter case, the head offices generally authorised or were informed of the proposed action.
29
According to recital 111 of the contested decision, carriers contacted each other bilaterally, in small groups and in some instances in large multilateral forums. Local associations of carrier representatives were used, in particular in Hong Kong and Switzerland, to discuss yield-improvement measures and coordinate surcharges. Meetings of alliances such as the WOW alliance were also used for such purposes.
30
In the second place, in Sections 4.3, 4.4 and 4.5 of the contested decision, the Commission described the contacts concerning, respectively, the FSC, the SSC and the refusal to pay commission (‘the contacts at issue’).
31
Thus, first, in recitals 118 to 120 of the contested decision, the Commission summarised the contacts relating to the FSC as follows:
‘(118)
A network of bilateral contacts built up from late 1999/early 2000 onwards involving a number of airlines that allowed information sharing concerning the actions of the participants throughout the network. Carriers contacted each other regularly to discuss any question that came up concerning the FSC, including changes to the mechanism, changes [to] the FSC level, consequent application of the mechanism, [and] instances when some airlines did not follow the system.
(119)
Concerning the implementation of FSC at local level, a system was often applied whereby leading airlines on particular routes or in certain countries would announce the change first, and they would be followed by others …
(120)
Anti-competitive coordination concerning the FSC took place mainly in four contexts: concerning the introduction of FSC in early 2000, the reintroduction of a fuel surcharge mechanism after the revocation of the planned [International Air Transport Association (IATA)] mechanism, the introduction of new trigger points (raising the maximum level of FSC) and most frequently at the point where the fuel indices were approaching the level at which an increase or decrease in the FSC would be triggered.’
32
Second, in recital 579 of the contested decision, the Commission summarised the contacts relating to the SSC as follows:
‘A number of [incriminated carriers] discussed, among others issues, their plans whether or not to introduce a SSC … Moreover, the amount of the surcharge and the timing of the introduction were also discussed. [The incriminated carriers] furthermore shared with each other ideas concerning the justification to be given to their customers. Ad hoc contacts concerning the implementation of the SSC continued throughout the years 2002-2006. The illicit coordination took place both at head office and local level.’
33
Third, in recital 676 of the contested decision, the Commission stated that the incriminated carriers had ‘continued to refuse commission on the surcharges and [had] confirmed their relevant intentions to each other in the framework of numerous contacts’.
34
In the third place, in Section 4.6 of the contested decision, the Commission carried out the assessment of the contacts at issue. The assessment of the contacts relied on against the applicant is set out in recitals 760 to 764 of that decision.
35
In recital 765 of the contested decision, the Commission added that the applicant did not contest the facts presented in the Statement of Objections.
36
In the fourth place, in Section 5 of the contested decision, the Commission applied Article 101 TFEU to the facts of the present case, while stating, in footnote 1289 to that decision, that the considerations adopted also applied to Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement. Thus, first, in recital 846 of that decision, the Commission found that the incriminated carriers had coordinated their conduct or influenced price setting, ‘ultimately amounting to price fixing with regard to’ the FSC, the SSC and the payment of commission on surcharges. In recital 861 of that decision, the Commission described the ‘overall scheme to coordinate the pricing behaviour for [freight] services’ the investigation of which had revealed the existence of a ‘complex infringement consisting of various actions which [could] be either classified as an agreement or concerted practice, within which the competitors [had] knowingly substituted practical cooperation between them for the risks of competition’.
37
Second, in recital 869 of the contested decision, the Commission found that the ‘conduct in question [constituted] a single and continuous infringement of Article 101 of the TFEU’. It thus found that the arrangements at issue pursued a single anticompetitive aim of distorting competition in the freight sector within the EEA, including when coordination took place at local level and experienced local variations (recitals 872 to 876), concerned a ‘single product/service’, namely ‘the provision of [freight] services and the pricing thereof’ (recital 877), concerned the same undertakings (recital 878), were of a single nature (recital 879), and related to three elements, namely the FSC, the SSC and the refusal to pay commission, which were ‘frequently discussed side by side in the same competitor contact’ (recital 880).
38
In recital 881 of the contested decision, the Commission added that ‘the majority of the parties’, including the applicant, were involved in all three elements of the single infringement.
39
Third, in recital 884 of the contested decision, the Commission concluded that the infringement at issue was continuous.
40
Fourth, in recitals 885 to 890 of the contested decision, the Commission examined the relevance of contacts in third countries and of contacts concerning routes which the carriers had never operated or which they could not legally have operated. It considered that, given the worldwide nature of the cartel at issue, those contacts were relevant to establishing the existence of the single and continuous infringement. In particular, it found that the surcharges were measures of general application that were not route-specific but were intended to be applied on all routes, on a worldwide basis, including routes to and from the EEA and Switzerland. It stated that the refusal to pay commission was equally general in nature. In addition, the Commission considered that there were no insurmountable barriers that prevented carriers from providing freight services on routes which they had never operated or which they could not legally operate, in particular because of the agreements which they were able to conclude between themselves.
41
Fifth, in recital 903 of the contested decision, the Commission found that the conduct at issue had the object of restricting competition ‘at least in the [European Union], the EEA and Switzerland’. In recital 917 of that decision, the Commission added, in essence, that there was, therefore, no need to take into account the ‘actual effects’ of that conduct.
42
Sixth, in recitals 922 to 971 of the contested decision, the Commission examined the WOW alliance. In recital 971 of that decision, it concluded that:
‘Having regard to the WOW Alliance Agreement and its implementation the Commission finds that the coordination of the surcharges between the WOW [alliance] members was conducted outside the legitimate framework of the alliance that does not justify it. The members were in fact aware that such coordination is illegitimate. Furthermore, they were aware that, the coordination of surcharges involved a number of [carriers] not participating in [the WOW alliance]. Consequently, the Commission finds that the evidence concerning contacts between WOW [alliance] members … constitutes evidence of their participation in the infringement of Article 101 of the TFEU as described in this Decision.’
43
Seventh, in recitals 972 to 1021 of the contested decision, the Commission examined the legislation of seven third countries, which several of the incriminated carriers maintained had required them to collude on surcharges, thereby impeding the application of the relevant competition rules. The Commission considered that those carriers had failed to prove that they had acted under duress from those third countries.
44
Eighth, in recitals 1024 to 1035 of the contested decision, the Commission found that the single and continuous infringement was likely to have an appreciable effect on trade between Member States, between contracting parties to the EEA Agreement and between contracting parties to the EC-Switzerland Air Transport Agreement.
45
Ninth, the Commission examined the limits of its territorial and temporal jurisdiction to find and penalise an infringement of the competition rules in the present case. First, in recitals 822 to 832 of the contested decision, under the heading ‘Jurisdiction of the Commission’, the Commission stated, in essence, that it would not apply, first of all, Article 101 TFEU to agreements and practices prior to 1 May 2004 concerning routes between airports within the European Union and airports outside the EEA (‘EU-third country routes’), next, Article 53 of the EEA Agreement to agreements and practices prior to 19 May 2005 concerning EU-third country routes and routes between airports in countries that are contracting parties to the EEA Agreement but are not EU Member States and airports in third countries (‘non-EU EEA-third country routes’ and, together with EU-third country routes, ‘EEA-third country routes’) and, lastly, Article 8 of the EC-Switzerland Air Transport Agreement to agreements and practices prior to 1 June 2002 concerning routes between airports within the European Union and Swiss airports (‘EU-Switzerland routes’). It also stated that the contested decision did ‘not purport to find an infringement of Article 8 of the [EC-Switzerland Air Transport Agreement] concerning freight services on routes between Switzerland and third countries’.
46
Second, in recitals 1036 to 1046 of the contested decision, under the heading ‘The applicability of Article 101 of the TFEU and Article 53 of the EEA Agreement to inbound routes’, the Commission rejected the arguments put forward by the various incriminated carriers that it exceeded the limits of its territorial jurisdiction under the rules of public international law by finding and penalising an infringement of those two provisions on routes from third countries to the EEA (‘inbound routes’ and, as regards the freight services offered on those routes, ‘inbound freight services’). In particular, in recital 1042 of that decision, it recalled the criteria which it considered to be applicable:
‘With respect to the extra-territorial application of Article 101 of the TFEU and Article 53 of the EEA Agreement these provisions are applicable to arrangements that are either implemented within the [European Union] (implementation theory) or that have immediate, substantial and foreseeable effects within the [European Union] (effects theory).’
47
In recitals 1043 to 1046 of the contested decision, the Commission applied the criteria in question to the facts of the present case:
‘(1043)
In the case of [inbound freight services], Article 101 of the TFEU and Article 53 of the EEA Agreement are applicable because the service itself that is the subject of the price fixing infringement is to be performed and is indeed performed, in part, within the territory of the EEA. Moreover, many contacts by which the addressees coordinated surcharges and the non-payment of commission took place in the EEA or involved participants in the EEA.
(1044)
… the example given in the [Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2008 C 95, p. 1)] is not relevant here. [That notice] relates to the geographic allocation of turnover of undertakings for the purpose of establishing whether the turnover thresholds of Article 1 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings [(OJ 2004 L 24, p. 1)] are met.
(1045)
In addition, anticompetitive practices in third countries with regard to … freight transportation to the EU /EEA are liable to have immediate, substantial and foreseeable effects within the EU /EEA, as the increased costs of air transport to the EEA, and consequently higher prices of imported goods, are by their very nature liable to have effects on consumers in the EEA. In this case the anticompetitive practices eliminating competition between carriers offering [inbound freight services] were liable to have such effects also on the provision of [freight] services by other carriers within the EEA, between the different hub airports used by carriers from third countries in the EEA and airports of destination of those shipments in the EEA to which the carrier from the third country does not fly.
(1046)
Finally, it has to be underlined that the Commission has found a world-wide cartel. The cartel was implemented globally and the cartel arrangements concerning inbound routes formed an integral part of the single and continuous infringement of Article 101 of the TFEU and Article 53 of the EEA Agreement. The cartel arrangements were in many cases organised centrally and the local personnel were merely implementing them. The uniform application of the surcharges on a world wide scale was a key element of the cartel.’
48
In the fifth place, in recital 1146 of the contested decision, the Commission found that the cartel at issue had started on 7 December 1999 and lasted until 14 February 2006. In the same recital, it stated that the cartel had infringed:
–
Article 101 TFEU, from 7 December 1999 to 14 February 2006, as regards air transport between airports within the European Union;
–
Article 101 TFEU, from 1 May 2004 to 14 February 2006, as regards air transport on EU-third country routes;
–
Article 53 of the EEA Agreement, from 7 December 1999 to 14 February 2006, as regards air transport between airports within the EEA (‘intra-EEA routes’);
–
Article 53 of the EEA Agreement, from 19 May 2005 to 14 February 2006, as regards air transport on non-EU EEA-third country routes;
–
Article 8 of the EC-Switzerland Air Transport Agreement, from 1 June 2002 to 14 February 2006, as regards air transport on EU-Switzerland routes.
49
In so far as the applicant is concerned, the Commission found that the duration of the infringement was from 7 December 1999 to 14 February 2006.
50
In the sixth place, in Section 8 of the contested decision, the Commission examined the remedies to be taken and the fines to be imposed.
51
As regards, in particular, its determination of the amount of the fines, the Commission stated that it took into account the gravity and duration of the single and continuous infringement as well as possible aggravating and mitigating circumstances. To that end, it applied the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’).
52
In recitals 1184 and 1185 of the contested decision, the Commission stated that the basic amount of the fine consisted of a proportion of up to 30% of the value of the undertaking’s sales, depending on the gravity of the infringement, multiplied by the number of years of the undertaking’s participation in the infringement, plus an additional amount of between 15 and 25% of the value of sales (‘the additional amount’).
53
In recital 1197 of the contested decision, the Commission determined the value of sales by adding together, for 2005 – that being the last full year of the single and continuous infringement – turnover from flights in both directions on intra-EEA routes, on EU-third country routes, on EU-Switzerland routes and on non-EU EEA-third country routes. It also took into account the accession of new Member States to the European Union in 2004.
54
In recitals 1198 to 1212 of the contested decision, taking into account the nature of the infringement (horizontal price-fixing agreements), the combined market share of the incriminated carriers (34% worldwide and at least as high on intra-EEA routes and EEA-third country routes), the geographic scope of the cartel at issue (worldwide) and the fact that the cartel had actually been implemented, the Commission set the gravity factor at 16%.
55
In recitals 1214 to 1217 of the contested decision, the Commission determined the duration of the applicant’s participation in the single and continuous infringement as follows, according to the routes concerned:
–
in so far as concerns intra-EEA routes, from 7 December 1999 to 14 February 2006, equating to six years and two months and giving rise to a multiplier of 62/12;
–
in so far as concerns EU-third country routes, from 1 May 2004 to 14 February 2006, equating to one year and nine months and giving rise to a multiplier of 19/12;
–
in so far as concerns EU-Switzerland routes, from 1 June 2002 to 14 February 2006, equating to three years and eight months and giving rise to a multiplier of 38/12;
–
in so far as concerns non-EU EEA-third country routes, from 19 May 2005 to 14 February 2006, equating to eight months and giving rise to a multiplier of 8/12.
56
In recital 1219 of the contested decision, the Commission found that, given the specific circumstances of the case and taking into account the criteria mentioned in paragraph 54 above, the additional amount should be set at 16% of the value of sales.
57
Consequently, in recitals 1240 to 1242 of the contested decision, the basic amount to be imposed on the applicant was assessed at EUR 113000000 and, after a reduction of 50% on the basis of point 37 of the 2006 Guidelines (‘the general 50% reduction’) to reflect the fact that part of the services relating to inbound routes and routes from the EEA to third countries (‘outbound routes’) was performed outside the territory covered by the EEA Agreement and that part of the harm was therefore likely to occur outside that territory, the basic amount of the applicant’s fine was fixed at EUR 56000000.
58
In recitals 1264 and 1265 of the contested decision, in accordance with point 29 of the 2006 Guidelines, the Commission granted the incriminated carriers an additional reduction of 15% in the basic amount of the fine (‘the general 15% reduction’) on the ground that certain regulatory regimes had encouraged the cartel at issue.
59
Consequently, in recital 1293 of the contested decision, the Commission set the basic amount of the applicant’s fine, after adjustment, at EUR 47600000.
60
In recitals 1314 to 1322 of the contested decision, the Commission took into account the applicant’s contribution in the context of its leniency application and applied a reduction of 25% to the amount of the fine, with the result that, as stated in recital 1404 of the contested decision, the amount of the fine imposed on the applicant was set at EUR 35700000.
61
The operative part of the contested decision, in so far as the present dispute is concerned, reads as follows:
‘Article 1
By coordinating their pricing behaviour in the provision of [freight] services on a global basis with respect to the [FSC], the [SSC] and the payment of commission payable on surcharges, the following undertakings have committed the following single and continuous infringement of Article 101 [TFEU], Article 53 of [the EEA Agreement] and Article 8 of [the EC-Switzerland Air Transport Agreement] as regards the following routes and for the following periods.
(1)
The following undertakings have infringed Article 101 of the TFEU and Article 53 of the EEA Agreement as regards [intra-EEA routes], for the following periods:
…
(h)
[the applicant] from 7 December 1999 until 14 February 2006;
…
(2)
The following undertakings infringed Article 101 of the TFEU as regards [EU-third country routes], for the following periods:
…
(h)
[the applicant] from 1 May 2004 until 14 February 2006;
…
(3)
The following undertakings infringed Article 53 of the EEA Agreement as regards [non-EU EEA-third country routes], for the following periods:
…
(h)
[the applicant] from 19 May 2005 until 14 February 2006;
…
(4)
The following undertakings infringed Article 8 of the [EC-Switzerland Air Transport Agreement] as regards [EU-Switzerland routes], for the following periods:
…
(h)
[the applicant] from 1 June 2002 until 14 February 2006;
…
Article 2
[The Decision of 9 November 2010] is amended as follows:
In Article 5, points (j), (k) and (l) are repealed.
Article 3
For the single and continuous infringement referred to in Article 1 (and as regards British Airways … also for the aspects of Articles 1 to 4 of [the Decision of 9 November 2010] that have become final), the following fines are imposed:
…
(h) [the applicant]: EUR 35700000;
…
Article 4
The undertakings listed in Article 1 shall immediately bring to an end the single and continuous infringement referred to in that article in so far as they have not already done so.
They shall also refrain from repeating any act or conduct having the same or similar object or effect.
Article 5
This Decision is addressed to:
…
[the applicant]
…’
II. Procedure and forms of order sought
62
By application lodged at the Court Registry on 30 May 2017, the applicant brought the present action.
63
The Commission lodged its defence at the Court Registry on 29 September 2017.
64
The applicant lodged its reply at the Court Registry on 2 January 2018.
65
The Commission lodged its rejoinder at the Court Registry on 8 March 2018.
66
On 24 April 2019, on a proposal from the Fourth Chamber, the Court decided, pursuant to Article 28 of its Rules of Procedure, to refer the present case to a chamber sitting in extended composition.
67
On 17 June 2019, in the context of the measures of organisation of procedure laid down in Article 89 of the Rules of Procedure, the Court put written questions to the parties. The parties replied within the prescribed period.
68
At the hearing on 3 July 2019, the parties presented oral argument and answered the questions put by the Court.
69
By order of 19 June 2020, the Court (Fourth Chamber, Extended Composition), considering that it lacked sufficient information and that it was necessary to invite the parties to submit their observations concerning an argument which had not been debated between them, ordered the reopening of the oral part of the procedure pursuant to Article 113 of the Rules of Procedure.
70
The parties replied within the prescribed period to a series of questions put by the Court on 22 June 2020, and then submitted observations on their respective replies.
71
By decision of 4 August 2020, the Court again closed the oral part of the procedure.
72
The applicant claims that the Court should:
–
annul the contested decision in so far as it concerns it;
–
in the alternative, reduce the fine imposed on it in the contested decision;
–
order the Commission to pay the costs.
73
The Commission contends, in essence, that the Court should:
–
dismiss the action;
–
alter the amount of the fine imposed on the applicant by withdrawing the benefit of the general 50% reduction and the general 15% reduction, should the Court find that the turnover from the sale of inbound freight services could not be included in the value of sales;
–
order the applicant to pay the costs.
III. Law
74
In its action, the applicant puts forward both a claim for annulment of the contested decision and a claim for a reduction in the amount of the fine imposed on it. The Commission, for its part, made an application seeking, in essence, an alteration of the amount of the fine imposed on the applicant, should the Court find that the turnover from the sale of inbound freight services could not be included in the value of sales.
A. The claim for annulment
75
The applicant puts forward 10 pleas in law in support of its claim for annulment. Those pleas allege:
–
first, breach of the ne bis in idem principle, infringement of Article 266 TFEU and expiry of the limitation period;
–
second, breach of the principle of non-discrimination;
–
third, infringement of Article 101 TFEU, Article 53 of the EEA Agreement and the obligation to state reasons as regards, on the one hand, the imputation to the applicant of liability for the single and continuous infringement on intra-EEA routes and EU-Switzerland routes for the period prior to 1 May 2004 and, on the other hand, the determination of the date on which its participation in that infringement began;
–
fourth, infringement of Article 101 TFEU and Article 53 of the EEA Agreement as regards the imputation to the applicant of liability for the single and continuous infringement on routes on which it was not an actual or potential competitor;
–
fifth, a lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services;
–
sixth, breach of the rights of the defence, of the principle of non-discrimination and of the principle of proportionality as regards the application of different evidential requirements to different carriers;
–
seventh, infringement of the 2006 Guidelines and breach of the principle of proportionality concerning, on the one hand, the determination of the value of sales and, on the other hand, the setting of the gravity factor and the additional amount;
–
eighth, infringement of the 2006 Guidelines and breach of the principle of the protection of legitimate expectations as regards the inclusion in the value of sales of turnover from the sale of inbound freight services to customers outside the EEA;
–
ninth, breach of the principle of proportionality on account of the inadequacy of the general 15% reduction; and
–
tenth, breach of the principle of non-discrimination, of the principle of proportionality and, in essence, of the obligation to state reasons as regards the Commission’s refusal to grant it a 10% reduction in the amount of the fine on account of its limited involvement in the single and continuous infringement.
76
The Court considers it appropriate to examine, first of all, the fifth plea, then, the plea raised of its own motion, alleging that the Commission lacked jurisdiction in the light of the EC-Switzerland Air Transport Agreement to find and penalise an infringement on non-EU EEA-Switzerland routes, and, lastly, the first to fourth and sixth to tenth pleas in turn.
1.
The fifth plea, alleging a lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services
77
The applicant submits that the Commission lacked jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services, which the Commission disputes.
78
It should be recalled that, as regards conduct adopted outside the territory of the EEA, the Commission’s jurisdiction under public international law to find and punish an infringement of Article 101 TFEU or Article 53 of the EEA Agreement may be established on the basis of the implementation test or the qualified effects test (see, to that effect, judgments of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 40 to 47, and of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraphs 95 to 97).
79
Those tests are alternative and not cumulative (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 98; see also, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 62 to 64).
80
In recitals 1043 to 1046 of the contested decision, the Commission, as the applicant acknowledges, relied both on the implementation test and on the qualified effects test as a basis under public international law for its jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes.
81
Since the applicant alleges an error in the application of each of those two tests, the Court considers it appropriate to examine first of all whether the Commission was entitled to rely on the qualified effects test. In accordance with the case-law cited in paragraph 79 above, only if this was not the case will it be necessary to ascertain whether the Commission could rely on the implementation test.
82
The applicant submits that the purported effects of the conduct at issue cannot justify the application of Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services. The Commission, which bears the burden of proof, has failed to establish that that conduct had any immediate, substantial and foreseeable effect within the EEA.
83
The applicant submits, relying on the Guidelines on the effect on trade concept contained in Articles [101] and [102 TFEU] (OJ 2004 C 101, p. 81), that the effects on which the Commission relies in recital 1045 of the contested decision are, at best, speculative and, in any event, too remote to substantiate the ground that the conduct at issue restricted competition within the EEA.
84
In particular, the Commission has adduced no evidence to support its contention that the price of goods sold in the EEA would be affected by the prices of inbound freight services. Moreover, such an effect could not be substantial, since the surcharges represent only a fraction of the total cost of freight services, and the cost of those freight services itself represents only a fraction of the cost of the goods imported into the EEA. Nor, by definition, could such an effect be immediate, since customers are free to choose whether or not to pass on any increase in the prices of inbound freight services in the price of imported goods and, if so, to decide the proportions in which they pass it on. Lastly, such an effect was not foreseeable, given that the applicant does not even operate on the upstream markets concerned and that surcharges form only a minuscule fraction of the cost of the transport of goods.
85
In addition, the effect of increasing the price of goods imported into the EEA relates to a market different from the one at issue in the present case, that is to say, the market for freight services, and so it cannot form the basis for the ground that the conduct at issue restricted competition within the EEA.
86
Furthermore, in order to establish the Commission’s jurisdiction to find and penalise an infringement of the competition rules, it is not sufficient to characterise conduct as a single and continuous infringement without analysing its anticompetitive effects.
87
The Commission disputes the applicant’s line of argument.
88
In the contested decision, the Commission relied, in essence, on three separate grounds in order to find that the qualified effects test was satisfied in the present case.
89
The first two grounds are set out in recital 1045 of the contested decision. As the Commission confirmed in reply to the written and oral questions put by the Court, those grounds concern the effects of coordination in relation to inbound freight services taken in isolation. The first ground is that the ‘increased costs of air transport to the EEA, and consequently higher prices of imported goods, [were] by their very nature liable to have effects on consumers in the EEA’. The second ground concerns the effects of coordination in relation to inbound freight services ‘also on the provision of [freight] services by other carriers within the EEA, between the different hub airports used by carriers from third countries in the EEA and airports of destination of those shipments in the EEA to which the carrier from the third country does not fly’.
90
The third ground is set out in recital 1046 of the contested decision and concerns, as is apparent from the Commission’s answers to the written and oral questions put by the Court, the effects of the single and continuous infringement taken as a whole.
91
The Court considers it appropriate to examine both the effects of coordination in relation to inbound freight services taken in isolation and the effects of the single and continuous infringement taken as a whole, starting with the former.
(a)
The effects of coordination in relation to inbound freight services taken in isolation
92
It is appropriate to examine, first of all, the merits of the first ground on which the Commission’s conclusion that the qualified effects test is satisfied in the present case (‘the effect at issue’) is based.
93
In that regard, it should be recalled that, as is apparent from recital 1042 of the contested decision, the qualified effects test allows the application of the EU and EEA competition rules to be justified under public international law when it is foreseeable that the conduct at issue will have an immediate and substantial effect in the internal market or within the EEA (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 49; see also, to that effect, judgment of 25 March 1999, Gencor v Commission, T‑102/96, EU:T:1999:65, paragraph 90).
94
In the present case, the applicant disputes the relevance of the effect at issue (see paragraphs 95 to 114 below) and its foreseeability (see paragraphs 116 to 131 below), its substantiality (see paragraphs 132 to 142 below) and its immediacy (see paragraphs 143 to 153 below).
(1) The relevance of the effect at issue
95
It is apparent from the case-law that the fact that an undertaking participating in an agreement or concerted practice is situated in a third country does not prevent the application of Article 101 TFEU and Article 53 of the EEA Agreement, if that agreement or practice is operative, respectively, in the internal market or within the EEA (see, to that effect, judgment of 25 November 1971, Béguelin Import, 22/71, EU:C:1971:113, paragraph 11).
96
The purpose of applying the qualified effects test is precisely to prevent conduct which, while not adopted within the EEA, has anticompetitive effects liable to have an impact in the internal market or within the EEA (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 45).
97
Contrary to what the applicant submits, that test does not require it to be established that the conduct at issue ‘in fact had any anticompetitive effect’ in the internal market or within the EEA. On the contrary, according to the case-law, it is sufficient to take account of the probable effects of that conduct on competition (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 51).
98
It is for the Commission to ensure the protection of competition in the internal market or within the EEA against threats to its effective functioning.
99
Where conduct has been found by the Commission, as in the present case, to reveal a degree of harmfulness to competition in the internal market or within the EEA such that it could be classified as a restriction of competition by ‘object’ within the meaning of Article 101 TFEU and Article 53 of the EEA Agreement, the application of the qualified effects test also cannot require the demonstration of the actual effects which classification of conduct as a restriction of competition by ‘effect’ within the meaning of those provisions presupposes.
100
In that regard, it should be recalled, as the applicant submits, that the qualified effects test is enshrined in the wording of Article 101 TFEU and Article 53 of the EEA Agreement, which are intended to prevent agreements and practices limiting competition within the internal market and within the EEA, respectively. Those provisions prohibit agreements and practices of undertakings which have as their object or effect the prevention, restriction or distortion of competition ‘within the internal market’ and ‘within the territory covered by [the EEA Agreement]’, respectively (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 42).
101
It is settled case-law that anticompetitive object and anticompetitive effect are not cumulative but alternative conditions for assessing whether conduct falls within the scope of the prohibitions laid down in Article 101 TFEU and Article 53 of the EEA Agreement (see, to that effect, judgment of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 28 and the case-law cited).
102
It follows that, as the Commission observed in recital 917 of the contested decision, there is no need to take account of the actual effects of the conduct at issue once its anticompetitive object has been established (see, to that effect, judgments of 13 July 1966, Consten and Grundig v Commission, 56/64 and 58/64, EU:C:1966:41, p. 342, and of 6 October 2009, GlaxoSmithKline Services and Others v Commission and Others, C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, EU:C:2009:610, paragraph 55).
103
In those circumstances, interpreting the qualified effects test as the applicant appears to advocate, as requiring proof of the actual effects of the conduct at issue even where there is a restriction of competition by ‘object’, would amount to making the Commission’s jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement subject to a condition which has no basis in the wording of those provisions.
104
The applicant cannot therefore validly claim that the Commission erred in finding that the qualified effects test was satisfied, even though it had, in recitals 917, 1190 and 1277 of the contested decision, stated that it was not required to make any assessment of the anticompetitive effects of the conduct at issue in the light of the anticompetitive object thereof. Nor can the applicant deduce from those recitals that the Commission did not carry out any analysis of the effects produced by that conduct in the internal market or within the EEA for the purposes of applying that test.
105
In recital 1045 of the contested decision, the Commission considered, in essence, that the single and continuous infringement, in so far as it related to inbound routes, was liable to increase the amount of the surcharges and, consequently, the total price of inbound freight services and that freight forwarders had passed on that additional cost to shippers based in the EEA, who had had to pay a higher price for the goods they had purchased than would have been charged in the absence of that infringement.
106
None of the applicant’s arguments permits the inference that the effect at issue was not among the effects produced by the conduct at issue which the Commission is entitled to take into account for the purposes of applying the qualified effects test.
107
In the first place, contrary to what is claimed by the applicant, there is nothing in the wording, scheme or purpose of Article 101 TFEU to suggest that the effects taken into account for the purposes of applying the qualified effects test must occur on the same market as that concerned by the infringement at issue rather than on a downstream market, as in the present case (see, to that effect, judgment of 9 September 2015, Toshiba v Commission, T‑104/13, EU:T:2015:610, paragraphs 159 and 161).
108
In the second place, the applicant is incorrect in claiming that the conduct at issue, in so far as it relates to inbound routes, was not capable of restricting competition in the EEA, on the ground that that conduct took place only in third countries where the freight forwarders who sourced inbound freight services from the incriminated carriers are established.
109
In that regard, it should be noted that the qualified effects test must be applied in the light of the economic and legal context of the conduct at issue (see, to that effect, judgment of 25 November 1971, Béguelin Import, 22/71, EU:C:1971:113, paragraph 13).
110
In the present case, it is apparent from recitals 14, 17 and 70 of the contested decision and from the parties’ replies to the Court’s measures of organisation of procedure that the carriers sell their freight services exclusively or almost exclusively to freight forwarders. As regards inbound freight services, almost all those sales take place at the origin of the routes in question, outside the EEA, where those freight forwarders are established. It is apparent from the application that, between 1 May 2004 and 14 February 2006, the applicant achieved only a negligible proportion of its sales of inbound freight services to customers based in the EEA.
111
It must, however, be observed that, although freight forwarders purchase those services, they do so in particular as intermediaries, in order to consolidate them into a package of services the purpose of which is, by definition, to organise the integrated transport of goods to the territory of the EEA on behalf of shippers. As is apparent from recital 70 of the contested decision, the latter may in particular be the purchasers or owners of the goods transported. It is therefore at the very least likely that they are established in the EEA.
112
It follows that, provided that the freight forwarders pass any additional costs resulting from the cartel at issue on to the price of their service packages, it is in particular on competition that occurs between freight forwarders in order to attract those shippers as customers that the single and continuous infringement, in so far as it concerns inbound routes, is liable to have an impact and, consequently, it is in in the internal market or within the EEA that the effect at issue is liable to materialise.
113
In the third place, as regards paragraph 43 of the guidelines referred to in paragraph 83 above, it is sufficient to note that it concerns a different situation from that envisaged in the present case and that it relates, in any event, to the concept of effects on trade between Member States for the purposes of Article 101(1) TFEU, not the issue of the territorial jurisdiction of the Commission under the qualified effects test. These are two distinct issues, the first concerning the definition of the area covered by EU competition law in the light of the law of the Member States (judgment of 13 July 2006, Manfredi and Others, C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 41), while the second concerns the justification of the Commission’s jurisdiction under public international law (see paragraph 78 above)
114
Consequently, the additional cost which shippers might have had to pay and the higher prices of goods imported into the EEA which may have resulted are among the effects produced by the conduct at issue on which the Commission was entitled to rely for the purposes of applying the qualified effects test.
115
In accordance with the case-law cited in paragraph 93 above, the question is therefore whether that effect has the required foreseeability, substantiality and immediacy.
(2) The foreseeability of the effect at issue
116
The requirement of foreseeability seeks to ensure legal certainty by guaranteeing that the undertakings concerned may not be penalised on account of effects which might indeed result from their conduct but which they could not reasonably expect to occur (see, to that effect, Opinion of Advocate General Kokott in Otis Gesellschaft and Others, C‑435/18, EU:C:2019:651, point 83).
117
Effects the occurrence of which the members of the cartel at issue ought reasonably to take into consideration on the basis of practical experience thus satisfy the requirement of foreseeability, unlike effects which result from an entirely extraordinary train of events and, therefore, ensue via an atypical causal chain (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C‑557/12, EU:C:2014:45, point 42).
118
It is apparent from recitals 846, 909, 1199 and 1208 of the contested decision that what is at issue in the present case is collusive horizontal price-fixing behaviour, experience of which shows that it leads inter alia to price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers (see, to that effect, judgment of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 51).
119
It is also apparent from recitals 846, 909, 1199 and 1208 of the contested decision that the conduct related to the FSC, the SSC and the refusal to pay commission.
120
In the present case, it was therefore foreseeable for the incriminated carriers that the horizontal fixing of the FSC and the SSC would lead to an increase in the level of the FSC and the SSC. As is apparent from recitals 874, 879 and 899 of the contested decision, the refusal to pay commission was liable to reinforce such an increase. It amounted to a concerted refusal to grant freight forwarders rebates on surcharges, by which the incriminated carriers ‘ensured that pricing uncertainty, which could have arisen from competition on commission payments [in the context of negotiations with freight forwarders], remained suppressed’ (recital 874 of that decision) and thus aimed to eliminate competition in respect of surcharges (recital 879 of that decision).
121
It is apparent from recital 17 of the contested decision that the price of freight services is made up of rates and surcharges, including the FSC and SSC. Unless it were considered that an increase in the FSC and the SSC would, as a result of a sufficiently probable ‘waterbed effect’, be offset by a corresponding reduction in rates and other surcharges, such an increase was, in principle, liable to lead to an increase in the total price of inbound freight services. The applicant has failed to demonstrate that a ‘waterbed effect’ was so probable as to render the effect at issue unforeseeable.
122
In those circumstances, the members of the cartel at issue could reasonably have foreseen that the single and continuous infringement would have the effect, in so far as it concerned inbound freight services, of increasing the price of freight services on inbound routes.
123
The question is therefore whether it was foreseeable for the incriminated carriers that freight forwarders would pass on such additional costs to their own customers, namely shippers.
124
In that regard, it is apparent from recitals 14 and 70 of the contested decision that the price of freight services constitutes an input for freight forwarders. It is a variable cost, the increase in which, in principle, has the effect of increasing the marginal cost in the light of which the freight forwarders determine their own prices.
125
The applicant does not put forward any evidence demonstrating that the circumstances of the present case were not conducive to passing on the additional costs resulting from the single and continuous infringement on inbound routes to shippers downstream.
126
In those circumstances, it was reasonably foreseeable for the incriminated carriers that freight forwarders would pass on such additional costs to shippers through an increase in the price of freight-forwarding services.
127
As is apparent from recitals 70 and 1031 of the contested decision, the cost of goods the integrated transportation of which is generally organised by freight forwarders on behalf of shippers incorporates the price of freight-forwarding services and in particular the cost of freight services, which are a constituent element thereof.
128
In the light of the foregoing, it was therefore foreseeable for the incriminated carriers that the single and continuous infringement would have the effect, in so far as it related to inbound routes, of increasing the price of imported goods.
129
For the reasons set out in paragraph 111 above, it was equally foreseeable for the incriminated carriers that, as is apparent from recital 1045 of the contested decision, that effect would occur in the EEA.
130
Since the effect at issue was part of the normal course of events and was economically rational, it was not, contrary to what the applicant submits, necessary for the applicant to operate on the market for importing goods or the downstream resale market for those goods in order to be able to foresee it.
131
It must therefore be concluded that the Commission has established to the requisite standard that the effect at issue was foreseeable.
(3) The substantiality of the effect at issue
132
The assessment of whether the effects produced by the conduct at issue are substantial must be carried out in the light of all the relevant circumstances of the case. Those circumstances include, inter alia, the duration, nature and scope of the infringement. Other circumstances, such as the size of the undertakings which participated in that conduct, may also be relevant (see, to that effect, judgments of 9 September 2015, Toshiba v Commission, T‑104/13, EU:T:2015:610, paragraph 159, and of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 112).
133
Where the effect under consideration relates to an increase in the price of a finished product or service derived from or containing the cartelised service, the proportion of the price of the finished product or service represented by the cartelised service may also be taken into account.
134
In the present case, in the light of all the relevant circumstances, it must be held that the effect at issue, relating to the increase in the price of goods imported into the EEA, is substantial.
135
In the first place, it is apparent from recital 1146 of the contested decision that the single and continuous infringement lasted 21 months in so far as it concerned EU-third country routes and 8 months in so far as it concerned non-EU EEA-third country routes. It is apparent from recitals 1215 and 1217 of that decision that this is also the duration of all the incriminated carriers’ participation, with the exception of Lufthansa Cargo and Swiss.
136
In the second place, as regards the scope of the infringement, it is apparent from recital 889 of the contested decision that the FSC and the SSC were ‘measures of general application that [were] not route specific’ and ‘were intended to be applied on all routes, on a worldwide basis, including routes to … the EEA’.
137
In the third place, as regards the nature of the infringement, it is apparent from recital 1030 of the contested decision that the object of the single and continuous infringement was to restrict competition between the incriminated carriers, inter alia on EEA-third country routes. In recital 1208 of that decision, the Commission concluded that the ‘fixing of various elements of the price, including particular surcharges, constitute[d] one of the most harmful restrictions of competition’ and therefore found that the single and continuous infringement merited the application of a gravity factor ‘at the higher end of the scale’ provided for in the 2006 Guidelines.
138
For the sake of completeness, as regards the proportion of the price of the cartelised service in the product or service which is derived from it or contains it, it should be noted that, contrary to what the applicant submits, during the infringement period the surcharges represented a significant proportion of the total price of freight services.
139
It is thus apparent from a letter of 8 July 2005 from the Hong Kong Association of Freight Forwarding & Logistics to the Chairman of the Cargo Sub-Committee (‘the CSC’) of the Hong Kong Board of Airline Representatives (‘the BAR’) that the surcharges represent a ‘very significant part’ of the total price of the air waybills which the freight forwarders were required to pay. Similarly, in the table reproduced in paragraph 135 of the application, it is stated that the surcharges represented 11.87% of the price of freight services on the applicant’s EEA-third country routes during the 2004/2005 financial year.
140
As is apparent from recital 1031 of the contested decision, the price of freight services was itself a ‘significant cost element of the goods transported that has an impact on their sale’. It is true that the applicant disputes this, but it merely makes assertions.
141
Again for the sake of completeness, as regards the size of the undertakings that participated in the conduct at issue, it is apparent from recital 1209 of the contested decision that the combined market share of the incriminated carriers on the ‘worldwide market’ was 34% in 2005 and was ‘at least as high’ for freight services provided on EEA-third country routes, which included both outbound and inbound routes. Moreover, during the infringement period, the applicant itself achieved a significant turnover on the inbound routes, in excess of EUR 140000000 in 2005.
142
It must therefore be concluded that the Commission has established to the requisite standard that the effect at issue was substantial.
(4) The immediacy of the effect at issue
143
The requirement of immediacy of the effects produced by the conduct at issue relates to the causal link between the conduct at issue and the effect under consideration. The purpose of that requirement is to ensure that the Commission cannot, in order to justify its jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement, rely on all possible effects, however remote, for which that conduct might have been the cause in the sense of a conditio sine qua non (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C‑557/12, EU:C:2014:45, points 33 and 34).
144
The direct causal link must not however be regarded as being the same as a single causal link, which would mean always finding as a matter of course that the chain of causality is broken where the action of a third party was a contributory cause of the effects at issue (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C‑557/12, EU:C:2014:45, points 36 and 37).
145
In the present case, the intervention of freight forwarders, in respect of which it was foreseeable that, with complete independence, they would pass on to shippers the additional costs that they had had to pay is indeed capable of having contributed to the occurrence of the effect at issue. However, that intervention was not in itself such as to break the causal chain between the conduct at issue and that effect and thus deprive it of its immediacy.
146
On the contrary, where it is not wrongful, but objectively results from the cartel at issue, in accordance with the normal functioning of the market, such an intervention does not break the causal chain (see, to that effect, judgment of 14 December 2005, CD Cartondruck v Council and Commission, T‑320/00, not published, EU:T:2005:452, paragraphs 172 to 182), but continues it (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C‑557/12, EU:C:2014:45, point 37).
147
In the present case, the applicant has not established, or even alleged, that the foreseeable passing on of the additional costs to shippers located in the EEA is wrongful or extraneous to the normal functioning of the market.
148
It follows that the effect at issue has the required immediacy.
149
That conclusion cannot be called into question by the applicant’s argument that, in order to affect ‘consumers in the EEA’, to which the Commission refers in recital 1045 of the contested decision, a ‘hypothetical price increase would have had to be passed on from the freight forwarder to the shipper, then from the shipper to the importer, and then possibly further from the importer to the wholesaler, from the wholesaler to the retailer and ultimately from the retailer to the consumer’. That argument is based on two incorrect premisses.
150
The first of the premisses at issue is that the ‘consumers in the EEA’ referred to in recital 1045 of the contested decision are end consumers, that is to say, natural persons who are acting for purposes outside their trade or profession. The concept of consumer in competition law does not refer only to end consumers but to all users, whether direct or indirect, of the goods or services which were the subject of the conduct at issue (see, to that effect, Opinion of Advocate General Mengozzi in MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:42, point 156).
151
It is apparent from recital 70 of the contested decision, the merits of which have not been effectively disputed by the applicant, that ‘shippers may be the purchasers or sellers of traded goods or the owners of goods that need to be moved rapidly over relatively long distances’. In its pleadings, the Commission stated that those goods could be imported for their direct consumption or as inputs for the production of other products. As regards inbound freight services, those shippers may, as the Commission rightly points out, be based in the EEA. The reference to ‘consumers in the EEA’ in recital 1045 of the contested decision must therefore be interpreted as including shippers.
152
The second of the premisses at issue is that, even if the reference to ‘consumers in the EEA’ in recital 1045 of the contested decision were to encompass only end consumers, the latter could acquire the imported goods only from a retailer, which could itself acquire them only from a wholesaler, which could in turn only acquire them from an importer and so on. End consumers are also likely to acquire those goods directly from the shipper.
153
It follows from the foregoing that the effect at issue is sufficiently foreseeable, substantial and immediate and that the first ground on which the Commission relied in order to conclude that the qualified effects test was satisfied is well founded. It must therefore be held that the Commission could, without making any error, find that that test was satisfied as regards coordination in relation to inbound freight services taken in isolation, without there being any need to examine the merits of the second ground relied on in recital 1045 of the contested decision.
(b)
The effects of the single and continuous infringement taken as a whole
154
It should be noted at the outset that, contrary to what the applicant suggests in the reply, there is nothing to prevent an assessment of whether the Commission has the necessary jurisdiction to apply, in each case, EU competition law in the light of the conduct of the undertaking or undertakings in question, viewed as a whole (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 50).
155
According to the case-law, Article 101 TFEU may be applied to practices and agreements that serve the same anticompetitive objective, provided that it is foreseeable that, taken together, they will have immediate and substantial effects in the internal market. Undertakings cannot be allowed to avoid the application of the EU competition rules by combining a number of types of conduct that pursue the same objective, each of which, taken on its own, is not capable of producing an immediate and substantial effect in that market, but which, taken together, are capable of producing such an effect (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 106).
156
The Commission may thus base its jurisdiction to apply Article 101 TFEU to a single and continuous infringement as found in the decision at issue on the foreseeable, immediate and substantial effects of that infringement in the internal market (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 105).
157
Those considerations apply, mutatis mutandis, to Article 53 of the EEA Agreement.
158
In recital 869 of the contested decision, the Commission characterised the conduct at issue as a single and continuous infringement, including in so far as it concerned inbound freight services. The applicant does not contest that characterisation generally, or the finding that there was a single anticompetitive objective of restricting competition within the EEA on which that characterisation is based. At most, the applicant contests, under the third plea, that its own actions may form part of such an infringement.
159
In recital 1046 of the contested decision, the Commission, as is apparent from its answers to the written and oral questions put by the Court, examined the effects of that infringement taken as a whole. It thus found, inter alia, that its investigation had revealed ‘a cartel [that] was implemented globally’, whose ‘arrangements concerning inbound routes formed an integral part of the single and continuous infringement of Article 101 of the TFEU and Article 53 of the EEA Agreement’. It added that the ‘uniform application of the surcharges on a world wide scale was a key element of the cartel [at issue]’. As the Commission stated in reply to the written questions put by the Court, the uniform application of the surcharges forms part of an overall strategy designed to neutralise the risk that the freight forwarders could circumvent the effects of that cartel by opting for indirect routes which would not be subject to coordinated surcharges to transport goods from the point of origin to the point of destination. The reason for this is, as is apparent from recital 72 of the contested decision, that ‘there is not the same time sensitivity associated with [freight] transport as there is with passenger transport’, so that freight ‘may be routed with a higher number of stopovers’ and that, as a result, indirect routes are substitutable for direct routes.
160
The arguments by which the applicant disputes the existence of such substitutability cannot succeed. First, the fact that freight may be the preferred means of transport for the carriage of goods which are sensitive to the passage of time does not mean that all goods transported by means of freight are so, nor does it mean that only goods sensitive to the passage of time are transported by freight. It cannot therefore be inferred from that fact alone that indirect routes are generally not suitable for freight transportation. Second, it should be noted that the applicant has failed to adduce the slightest evidence in support of its line of argument. Conversely, the Commission refers to an agreement by which the members of the WOW alliance organised the transportation of wine from the EEA to Japan via connections through the United States and Asian countries other than Japan.
161
In those circumstances, the Commission is correct in contending that prohibiting it from applying the qualified effects test to the conduct at issue taken as a whole might lead to an artificial fragmentation of comprehensive anticompetitive conduct, capable of affecting the market structure within the EEA, into a collection of separate forms of conduct which might escape, in whole or in part, the European Union’s jurisdiction (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 57).
162
It must therefore be held that the Commission was entitled, in recital 1046 of the contested decision, to examine the effects of the single and continuous infringement taken as a whole.
163
As regards the agreements and practices, first, which had the object of restricting competition at least in the European Union, the EEA and Switzerland (recital 903 of that decision), second, which brought together carriers with significant market shares (recital 1209 of that decision) and, third, a significant part of which related to intra-EEA routes for a period of more than six years (recital 1146 of that decision), there can be little doubt that it was foreseeable that, taken as a whole, the single and continuous infringement would produce immediate and substantial effects in the internal market or within the EEA.
164
It follows that the Commission was also entitled to find, in recital 1046 of the contested decision, that the qualified effects test was satisfied as regards the single and continuous infringement taken as a whole.
165
Since the Commission has thus established to the requisite standard that it was foreseeable that the conduct at issue would produce a substantial and immediate effect in the EEA, the present complaint must be rejected and, consequently, the present plea must be rejected in its entirety, without it being necessary to examine the complaint alleging errors in the application of the implementation test.
2.
The plea, raised of the Court’s own motion, alleging a lack of jurisdiction on the part of the Commission, in the light of the EC-Switzerland Air Transport Agreement, to find and penalise an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes
166
As a preliminary point, it should be recalled that it is for the Courts of the European Union to examine of their own motion the plea, which is a matter of public policy, alleging a lack of jurisdiction on the part of the author of the contested measure (see, to that effect, judgment of 13 July 2000, Salzgitter v Commission, C‑210/98 P, EU:C:2000:397, paragraph 56).
167
According to settled case-law, the Courts of the European Union cannot, as a general rule, base their decisions on a plea raised of their own motion – even one involving a matter of public policy – without first having invited the parties to submit their observations in that regard (see judgment of 17 December 2009, ReviewM v EMEA, C‑197/09 RX‑II, EU:C:2009:804, paragraph 57 and the case-law cited).
168
In the present case, the Court takes the view that it has a duty to examine of its own motion whether the Commission exceeded its own jurisdiction under the EC-Switzerland Air Transport Agreement, as regards non-EU EEA-Switzerland routes, by finding, in Article 1(3) of the contested decision, that there had been an infringement of Article 53 of the EEA Agreement on non-EU EEA-third country routes, and invited the parties to submit their observations in that regard in the context of measures of organisation of procedure.
169
The applicant claimed that the reference to ‘third countries’ in Article 1(3) of the contested decision includes the Swiss Confederation. According to the applicant, the latter is in fact a third country for the purposes of the EEA Agreement, the infringement of which is found in that article. The applicant infers therefrom that, in that article, the Commission found an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes. It adds that, in so doing, the Commission has, first, infringed Article 11(2) of the EC-Switzerland Air Transport Agreement and, second, infringed international treaty law by imposing an obligation on the Swiss Confederation without having obtained its prior consent. According to the applicant, those illegalities justify a reduction in the gravity factor and, consequently, in the amount of the fine imposed on it.
170
The Commission replies that the reference in Article 1(3) of the contested decision to ‘routes between airports in countries that are Contracting Parties of the EEA Agreement but not Member States and airports in third countries’ cannot be interpreted as including non-EU EEA-Switzerland routes. In its view, the concept of ‘third country’ within the meaning of that article excludes the Swiss Confederation.
171
The Commission adds that, if it were to be held that it found the applicant 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, it would have exceeded the limits which Article 11(2) of the EC-Switzerland Air Transport Agreement imposes on its jurisdiction.
172
It is necessary to determine whether, as the applicant maintains, the Commission found an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes in Article 1(3) of the contested decision and, if necessary, whether it thus exceeded the limits of its jurisdiction under the EC-Switzerland Air Transport Agreement.
173
In that regard, it should be recalled that the principle of effective judicial protection is a general principle of EU law now enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). That principle, which corresponds, in EU law, to Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, requires that the operative part of a decision by which the Commission finds infringements of the competition rules must be particularly clear and precise and that the undertakings held liable and penalised must be in a position to understand and to contest the imputation of liability and the imposition of those penalties, as set out in the wording of that operative part (see judgment of 16 December 2015, Martinair Holland v Commission, T‑67/11, EU:T:2015:984, paragraph 31 and the case-law cited).
174
It is in the operative part of its decisions that the Commission must indicate the nature and extent of the infringements which it penalises. As regards in particular the scope and nature of the infringements penalised, it is thus in principle the operative part, and not the statement of reasons, which is important. Only where there is a lack of clarity in the terms used in the operative part should reference be made, for the purposes of interpretation, to the statement of reasons contained in a decision (see judgment of 16 December 2015, Martinair Holland v Commission, T‑67/11, EU:T:2015:984, paragraph 32 and the case-law cited).
175
In Article 1(3) of the contested decision, the Commission found that the applicant had ‘infringed Article 53 of the EEA Agreement as regards routes between airports in countries that are Contracting Parties of the EEA Agreement but not Member States and airports in third countries’ from 19 May 2005 to 14 February 2006. It neither expressly included non-EU EEA-Switzerland routes among those routes nor expressly excluded them.
176
It is therefore necessary to ascertain whether the Swiss Confederation falls within the ‘third countries’ referred to in Article 1(3) of the contested decision.
177
In that regard, it should be noted that Article 1(3) of the contested decision distinguishes between ‘countries that are Contracting Parties of the EEA Agreement but not Member States’ and third countries. It is true that, as the applicant points out, the Swiss Confederation is not a party to the EEA Agreement and is therefore among the third countries to that agreement.
178
It must however be borne in mind that, given the requirements of unity and consistency in the EU legal order, the same terms used in the same measure must be presumed to have the same meaning.
179
In Article 1(2) of the contested decision, the Commission found an infringement of Article 101 TFEU on ‘routes between airports within the European Union and airports outside the EEA’. That concept does not include airports in Switzerland, even though the Swiss Confederation is not a party to the EEA Agreement and its airports must therefore formally be regarded as being ‘outside the EEA’ or, in other words, in a third country to that agreement. Those airports form the subject of Article 1(4) of the contested decision, which finds an infringement of Article 8 of the EC-Switzerland Air Transport Agreement on ‘routes between airports within the European Union and airports in Switzerland’.
180
In accordance with the principle recalled in paragraph 177 above, it must therefore be presumed that the terms ‘airports in third countries’ used in Article 1(3) of the contested decision have the same meaning as the terms ‘airports outside the EEA’ used in Article 1(2) thereof and, consequently, exclude airports in Switzerland.
181
In the absence of the slightest indication in the operative part of the contested decision that the Commission intended to give a different meaning to the concept of ‘third countries’ referred to in Article 1(3) of the contested decision, it must be concluded that the concept of ‘third countries’ in Article 1(3) thereof excludes the Swiss Confederation.
182
It cannot therefore be considered that the Commission found the applicant 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.
183
Since the operative part of the contested decision does not give rise to any doubts, it is thus solely for the sake of completeness that the Court adds that the grounds of that decision do not contradict that conclusion.
184
In recital 1146 of the contested decision, the Commission stated that the ‘anti-competitive arrangements’ described by it infringed Article 101 TFEU from 1 May 2004 to 14 February 2006‘as regards air transport between airports within the [European Union] and airports outside the EEA’. In the footnote relating thereto (No 1514), the Commission specified the following: ‘For the purpose of this Decision, “airports outside the EEA” include airports in countries other than in [the Swiss Confederation] and in Contracting Parties to the EEA Agreement’.
185
Admittedly, when it describes the scope of the infringement of Article 53 of the EEA Agreement in recital 1146 of the contested decision, the Commission does not refer to the concept of ‘airports outside the EEA’, but to that of ‘airports in third countries’. It cannot however be inferred therefrom that the Commission intended to give a different meaning to the concept of ‘airports outside the EEA’ for the purposes of applying Article 101 TFEU and to that of ‘airports in third countries’ for the purposes of applying Article 53 of the EEA Agreement. On the contrary, the Commission used those two expressions interchangeably in the contested decision. Thus, in recital 824 of the contested decision, the Commission stated that it ‘[would] not apply Article 101 of the TFEU to anti-competitive agreements and practices concerning air transport between EU airports and airports in third countries that took place before 1 May 2004’. Similarly, in recital 1222 of that decision, regarding the end of SAS Consortium’s participation in the single and continuous infringement, the Commission refers to its jurisdiction under those provisions ‘on routes between the [European Union] and third countries as well as routes between Iceland, Norway and Liechtenstein and countries outside the EEA’.
186
The grounds of the contested decision thus confirm that the concepts of ‘airports in third countries’ and ‘airports outside the EEA’ have the same meaning. In accordance with the definition clause in footnote 1514, it must therefore be considered that both exclude airports in Switzerland.
187
Contrary to what the applicant claims, recitals 1194 and 1241 of the contested decision do not militate in favour of another solution. Admittedly, in recital 1194 of that decision, the Commission referred to ‘EEA – third country routes, except routes between the [European Union] and Switzerland’. Similarly, in recital 1241 of that decision, in the context of the ‘determination of the value of sales on third country routes’, the Commission reduced by 50% the basic amount for ‘EEA - third country routes, except routes between the [European Union] and Switzerland where the Commission is acting under the [EC-Switzerland Air Transport Agreement]’. It could be considered that, as the applicant in essence submits, if the Commission took care to insert in those recitals the words ‘except routes between the [European Union] and Switzerland’, it is because it considered the Swiss Confederation to be covered by the concept of ‘third country’ in so far as EEA-third country routes were concerned.
188
The Commission also acknowledged that it was possible that it had ‘inadvertently’ included in the value of sales the turnover which some of the incriminated carriers had generated on non-EU EEA-Switzerland routes during the period concerned. According to the Commission, the reason for this is that, in a request for information of 26 January 2009 concerning certain turnover figures, it did not inform the carriers concerned that turnover on non-EU EEA-Switzerland routes should be excluded from the value of sales on non-EU EEA-third country routes.
189
It must nevertheless be held, as the Commission stated, that those aspects concerned only the revenues to be taken into account for the purposes of calculating the basic amount of the fine, not the definition of the geographic scope of the single and continuous infringement which is as issue here.
190
The present plea must therefore be rejected.
3.
The first plea, alleging breach of the ne bis in idem principle and infringement of Article 266 TFEU and expiry of the limitation period
191
The applicant divides this plea into two parts, alleging, first, breach of the ne bis in idem principle and infringement of Article 266 TFEU and, second, expiry of the limitation period and a lack of legitimate interest in making a formal finding of infringement.
192
The Court considers it appropriate to deal first with the second part, alleging expiry of the limitation period.
(a)
The second part, alleging expiry of the limitation period and a lack of legitimate interest in making a formal finding of infringement
193
The applicant claims that the limitation period has expired and that there is no legitimate interest in making a formal finding of infringement.
194
As regards the limitation period, the applicant submits that, in so far as its action against the Decision of 9 November 2010 did not seek annulment of the findings of infringement relating to intra-EEA routes and EU-Switzerland routes, Article 25(6) of Regulation No 1/2003 providing for the suspension of that period in the event of proceedings pending before the Court did not apply. By imposing a fine on the applicant in respect of those routes in the contested decision, the Commission therefore failed to have regard to that limitation period.
195
As regards the legitimate interest in finding the infringement in respect of intra-EEA routes and EU-Switzerland routes, the applicant submits that it is for the Commission to demonstrate that it has such an interest. However, the Commission does not provide any evidence to show that the applicant had not complied with the obligation laid down in the Decision of 9 November 2010 to terminate the infringement immediately. Nor are there any grounds for the Commission to assume, as it did in recital 1171 of the contested decision, that the applicant might not have brought the infringement to an end by the time of the adoption of the contested decision. Moreover, both the contested decision and the Decision of 9 November 2010 indicate that there is no evidence that the collusive arrangements continued after the first day of the inspections, that is, 14 February 2006. The applicant also submits that, according to the case-law, the failure on the Commission’s part to demonstrate a legitimate interest is sufficient to justify the annulment of the contested decision in its entirety in so far as the applicant is concerned.
196
Lastly, if the Court were to uphold this part of the plea, but hold that the contested decision should not be annulled in its entirety, account should be taken of the expiry of the limitation period when calculating the amount of the fine. According to the applicant, the gravity factor and the additional amount applicable to it should therefore be set at a percentage lower than 16%. It submits that, otherwise, that would give rise to unjustifiable discrimination between it and the carriers found liable for the single and continuous infringement on all routes, and would render meaningless the 10-year limitation period laid down in Article 25 of Regulation No 1/2003.
197
The Commission disputes the applicant’s line of argument.
198
According to the Commission, the 10-year limitation period was suspended between 24 January 2011, the date on which the applicant brought its action against the Decision of 9 November 2010, and 16 December 2015, the date on which the Court gave its judgment in Japan Airlines v Commission (T‑36/11, not published, EU:T:2015:992). Taking that suspension into account, the period which elapsed between 14 February 2006, the date on which the infringement ended, and 17 March 2017, the date of adoption of the contested decision, was only 6 years, 2 months and 26 days.
199
The Commission emphasises that the Decision of 9 November 2010 described a single and continuous infringement covering all the routes at issue and that, by its action against that decision, the applicant sought the decision’s annulment, entailing the suspension of the limitation period.
200
The Commission adds that the gravity factor and the additional amount need not be adjusted. The gravity factor remained the same for all addressees of the contested decision, and the geographic scope of the conduct of each addressee was reflected in the turnover figures used to calculate the amount of their respective fines.
201
It should be recalled that, pursuant to Article 25(1)(b), (2), (3) and (5) of Regulation No 1/2003, the limitation period for the power to impose a fine is to expire where:
–
the Commission did not impose a fine within five years from the day on which the infringement ceased (paragraph 1(b)) without any action interrupting the limitation period having been taken in the meantime (paragraph 3);
–
or at the latest within 10 years from the day on which the infringement ceased if interruptive actions have been taken (paragraph 5).
202
In addition, Article 25(6) of Regulation No 1/2003 provides that the limitation period is to be suspended for as long as the decision of the Commission is the subject of proceedings pending before the Court of Justice. Under paragraph 5 of that article, the limitation period of 10 years is to be extended by the time during which limitation is suspended pursuant to paragraph 6.
203
In accordance with Article 25(3) of Regulation No 1/2003, the limitation period is to be interrupted by any action taken by the Commission for the purpose of the investigation or proceedings in respect of an infringement notified to at least one undertaking which has participated in the infringement. In accordance with Article 25(4) of that regulation, the interruption of the limitation period is to apply for all the undertakings which have participated in the infringement in question.
204
It follows that the fact that an undertaking was not identified as having participated in the infringement in one or more actions taken for the purpose of the investigation or proceedings in respect of the infringement during the administrative procedure does not preclude the interruption of the limitation period from also applying to it, provided that the undertaking concerned is subsequently identified as having participated in the infringement (judgment of 31 March 2009, ArcelorMittal Luxembourg and Others v Commission, T‑405/06, EU:T:2009:90, paragraphs 143 and 144).
205
On the other hand, the Court of Justice has held that, unlike the erga omnes effect of the actions which interrupt the limitation period referred to in Article 25(3) and (4) of Regulation No 1/2003, the suspension of the limitation period which Article 25(6) of that regulation attaches to judicial proceedings takes effect only inter partes (judgment of 29 March 2011, ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, C‑201/09 P and C‑216/09 P, EU:C:2011:190, paragraph 148).
206
Thus, with respect to undertakings which have not brought actions against a final decision of the Commission, an action brought by another undertaking against the same final decision cannot have any suspensive effect (judgment of 29 March 2011, ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, C‑201/09 P and C‑216/09 P, EU:C:2011:190, paragraph 145).
207
Lastly, the fact that the Commission no longer has the power to impose fines on persons committing an infringement on account of the expiry of the limitation period does not in itself preclude the adoption of a decision finding that that infringement was committed, provided that the Commission demonstrates, in such a case, a legitimate interest in taking a decision finding such an infringement (see, by analogy, judgment of 6 October 2005, Sumitomo Chemical and Sumika Fine Chemicals v Commission, T‑22/02 and T‑23/02, EU:T:2005:349, paragraphs 131 and 132).
208
In the present case, it is not disputed that the starting point of the limitation period is the date on which the single and continuous infringement ceased, namely 14 February 2006, in accordance with Article 25(2) of Regulation No 1/2003.
209
Furthermore, the applicant merely claims that the limitation period of 10 years laid down in Article 25(5) of that regulation has expired, without claiming that the five-year limitation period has also expired. It is common ground that, on the date of adoption of the contested decision, more than 10 years had elapsed since the single and continuous infringement ceased.
210
The Commission nevertheless argues, unlike the applicant, that the limitation period was suspended, in accordance with Article 25(6) of that regulation, while the proceedings which gave rise to the judgment of 16 December 2015, Japan Airlines v Commission (T‑36/11, not published, EU:T:2015:992), were pending, so that the prescription period had not expired on the date of adoption of the contested decision.
211
It is therefore necessary to determine whether the action brought by the applicant against the Decision of 9 November 2010 had the effect of extending the 10-year limitation period as regards its infringing conduct found in Article 1(1) and (4) of the contested decision, on intra-EEA routes and on EU-Switzerland routes, respectively.
212
In that regard, it should be noted that, in order to conclude that the suspension of a limitation period in respect of an action against a Commission decision imposing a penalty is inter partes (paragraph 205 above), the Court of Justice has relied in particular on the extent of the matter to be tried by the Court of the European Union before which the action for annulment is brought, recalling that the matter to be tried by the Courts of the European Union relates only to those aspects of the decision which concern the applicant for annulment (see, to that effect, judgment of 29 March 2011, ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, C‑201/09 P and C‑216/09 P, EU:C:2011:190, paragraph 142). It follows that the scope of the action for annulment must be consistent with the scope of the effect on limitation attaching thereto under Article 25(6) of Regulation No 1/2003.
213
It is therefore necessary to determine the scope of the applicant’s action against the Decision of 9 November 2010 and, in particular, whether, in the context of the dispute brought before it by the applicant, the matter to be tried by the Court concerned conduct relating to intra-EEA routes and EU-Switzerland routes.
214
In that regard, it is settled case-law that the assessments made in the grounds for a decision are not in themselves capable of forming the subject of an action for annulment and can be subject to review by the Courts of the European Union only to the extent that, as grounds for an act adversely affecting a person’s interests, they constitute the necessary basis for the operative part of that act (see judgment of 11 June 2015, Laboratoires CTRS v Commission, T‑452/14, not published, EU:T:2015:373, paragraph 51 and the case-law cited).
215
Furthermore, the Court of Justice has held that a decision adopted in a competition matter with regard to several undertakings, although drafted and published as a single decision, must be regarded as a group of individual decisions establishing, in relation to each of the undertakings to which it is addressed, the breach or breaches which that undertaking has been found to have committed and, where appropriate, imposing on it a fine (judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 100). The Court of Justice has also held that, if an addressee of a decision decides to bring an action for annulment, the matter to be tried by the Courts of the European Union relates only to those aspects of the decision which concern that addressee, whereas aspects concerning other addressees do not form part of the matter to be tried by the Courts of the European Union, without prejudice to special circumstances (judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 66).
216
Accordingly, the subject matter of the action brought by the applicant against the Decision of 9 November 2010 must be confined to the operative part of that decision, in so far as it concerned the applicant, and to the grounds which constituted the necessary basis for that operative part. That operative part, in so far as it found that the undertakings to which that decision was addressed participated in the unlawful conduct referred to therein, made such a finding in respect of the applicant only with regard to EU-third country routes (Article 2) and non-EU EEA-third country routes (Article 3). By contrast, that operative part, in so far as it did not refer to the applicant in Articles 1 and 4 thereof, did not find it liable for the conduct relating to intra-EEA routes and to EU-Switzerland routes and did not therefore constitute an aspect of the decision that concerned the applicant capable of being challenged before the Court.
217
That finding is not called into question by the fact, put forward by the Commission, that the applicant sought annulment of the Decision of 9 November 2010 in its entirety.
218
Since that decision must be regarded as a group of individual decisions establishing, in relation to each of the carriers incriminated in it, the breach or breaches which that undertaking has been found to have committed, the applicant, in seeking annulment of that decision in its entirety, sought annulment of the individual decision addressed to it, which did not impute to it the conduct on intra-EEA routes and EU-Switzerland routes. That is confirmed by the operative part of the judgment of 16 December 2015, Japan Airlines v Commission (T‑36/11, not published, EU:T:2015:992), which states that the Decision of 9 November 2010 is annulled in so far as it concerns the applicant.
219
In the light of the foregoing, it must be held that the action brought by the applicant against the Decision of 9 November 2010 was not capable of resulting in the extension of the limitation period provided for in Article 25(5) of Regulation No 1/2003, as regards the unlawful conduct linked to intra-EEA routes and EU-Switzerland routes.
220
Accordingly, in the absence of any extension of the limitation period, the Commission’s exercise of its power to impose penalties in respect of the conduct in question was time-barred as from 14 February 2016, that is to say, on a date prior to the date on which the contested decision was adopted.
221
It follows that, by penalising the applicant in the contested decision for the single and continuous infringement in respect of intra-EEA routes and EU-Switzerland routes, the Commission infringed the rules on limitation laid down in Article 25 of Regulation No 1/2003.
222
Furthermore, even if, as the Commission appeared to suggest in response to a written question put by the Court in the context of measures of organisation of procedure, the fine imposed on the applicant was not imposed in respect of the unlawful conduct concerning intra-EEA routes and EU-Switzerland routes, it must be observed that the Commission does not maintain, either in the contested decision or before the Court, that it has a legitimate interest in finding the existence of that unlawful conduct notwithstanding the fact that the power to impose a fine in that respect is time-barred (see, to that effect, judgments of 6 October 2005, Sumitomo Chemical and Sumika Fine Chemicals v Commission, T‑22/02 and T‑23/02, EU:T:2005:349, paragraph 136, and of 16 November 2011, Stempher and Koninklijke Verpakkingsindustrie Stempher v Commission, T‑68/06, not published, EU:T:2011:670, paragraph 44).
223
Consequently, the second part of the first plea must be upheld and Article 1(1)(h) and (4)(h) of the contested decision must be annulled.
224
It does not follow, however, that the contested decision must be annulled in its entirety, contrary to what the applicant claims (see paragraph 195 above). First, unlike the case that gave rise to the judgment of 6 October 2005, Sumitomo Chemical and Sumika Fine Chemicals v Commission (T‑22/02 and T‑23/02, EU:T:2005:349), on which the applicant seeks to rely, the limitation period has expired, in the present case, only in respect of some of the findings of infringement contained in the contested decision, namely those relating to intra-EEA routes and EU-Switzerland routes. Second, contrary to what the applicant maintained at the hearing and as is shown by the following examination of the remaining pleas in support of the present action, upholding this part of the plea does not have the effect of preventing the applicant from usefully challenging, and the Court from examining, the legality of the remainder of the contested decision.
225
As to the first part of Article 4 of the contested decision, there is no need for it to be annulled, since it is confined to calling upon the incriminated carriers to bring to an end the single and continuous infringement ‘in so far as they have not already done so’.
226
Furthermore, in so far as the applicant submits that the annulment of Article 1(1)(h) and (4)(h) of the contested decision should be taken into account at the stage of calculating the fine, its line of argument will be examined in the assessment of its claim for alteration of the amount of the fine.
(b)
The first part, alleging breach of the ne bis in idem principle and infringement of Article 266 TFEU
227
The applicant claims, first of all, that the Commission breached the ne bis in idem principle enshrined in Article 50 of the Charter and Article 266 TFEU by finding it liable for the single and continuous infringement on intra-EEA routes between 7 December 1999 and 14 February 2006 and on EU-Switzerland routes between 1 June 2002 and 14 February 2006, whereas, in the Decision of 9 November 2010, it was exonerated from all liability on those routes and was found liable for the single infringement only on EU-third country routes between 1 May 2004 and 14 February 2006 and on non-EU EEA-third country routes between 19 May 2005 and 14 February 2006.
228
In addition, the Commission breached the principle of equal treatment by refraining from addressing the contested decision to Qantas on the ground that it had not challenged the Decision of 9 November 2010, whereas the applicant, which had not challenged that decision in so far as it exonerated the applicant in respect of intra-EEA routes and EU-Switzerland routes, is now found liable in respect of those routes.
229
In the reply, the applicant adds that, by failing to organise a new hearing and to send a new statement of objections before substantially amending the operative part of the Decision of 9 November 2010, in finding it liable in respect of intra-EEA routes between 7 December 1999 and 14 February 2006 and EU-Switzerland routes between 1 June 2002 and 14 February 2006, the Commission acted unlawfully in a way that, in itself, justifies the annulment of the contested decision.
230
The Commission disputes the applicant’s line of argument.
231
By the various complaints raised in the context of the present part of the plea, the applicant claims, in essence, that the Commission unlawfully found it liable for the single and continuous infringement in so far as it concerns intra-EEA and EU-Switzerland routes. Since the Court has upheld the second part of the first plea and, consequently, annulled Article 1(1)(h) and (4)(h) of the contested decision, it is unnecessary to examine this part of the plea.
4.
The second plea, alleging breach of the principle of non-discrimination, and the third plea, alleging infringement of Article 101 TFEU, Article 53 of the EEA Agreement and the obligation to state reasons as regards, on the one hand, the imputation to the applicant of liability for the single and continuous infringement on intra-EEA and EU-Switzerland routes for the period prior to 1 May 2004 and, on the other hand, the determination of the date on which its participation in that infringement began
232
By the second plea, the applicant claims that the Commission breached the principle of non-discrimination by finding it liable for an infringement that is broader in scope and longer in duration than the infringements for which Qantas was found liable in the Decision of 9 November 2010.
233
The applicant submits that it is in the same situation as Qantas, in so far as it also did not operate on intra-EEA routes and EU-Switzerland routes. In addition, it claims that, like Qantas, it never challenged the parts of the Decision of 9 November 2010 concerning intra-EEA routes and EU-Switzerland routes for which it is now found liable in the contested decision.
234
Under the third plea, the applicant claims that the Commission infringed the obligation to state reasons, Article 101 TFEU and Article 53 of the EEA Agreement by finding it liable for the single and continuous infringement on intra-EEA and EU-Switzerland routes for the period prior to 1 May 2004. It recalls that, before 1 May 2004, the Commission could apply Article 101 TFEU only to routes between airports within the European Union and therefore did not apply to EU-third country routes. According to the applicant, before 19 May 2005, the same was true of Article 53 of the EEA Agreement, which the Commission could not then apply to air transport on non-EU EEA-third country routes. It infers from this that its participation in contacts concerning EU-Japan routes with other carriers before 1 May 2004 was lawful. Since those contacts did not fall within the Commission’s jurisdiction and were therefore lawful, they could not, by definition, have formed part of the ‘common unlawful enterprise’ referred to by the Commission in recital 865 of the contested decision. The applicant therefore submits that it cannot be held that, by participating in those contacts, it contributed to the single and continuous infringement.
235
The Commission disputes the applicant’s line of argument.
236
It should be noted that, in essence, the applicant claims, by its second plea, that the Commission breached the principle of non-discrimination by finding it liable for the single and continuous infringement in so far as it concerns intra-EEA and EU-Switzerland routes, whereas Qantas was not accused of any infringement on those routes. Similarly, by the third plea, the applicant claims, in essence, that the Commission infringed Article 101 TFEU and Article 53 of the EEA Agreement by finding it liable for the single and continuous infringement in so far as it concerns those routes.
237
The Court has upheld the second part of the first plea and, consequently, has already annulled Article 1(1)(h) and (4)(h) of the contested decision, in which the Commission had found the applicant liable for the single and continuous infringement in so far as it concerned intra-EEA and EU-Switzerland routes. Examination of the second and third pleas has therefore become unnecessary.
5.
The fourth plea, alleging infringement of Article 101 TFEU and Article 53 of the EEA Agreement as regards the imputation to the applicant of liability for the single and continuous infringement on routes on which it was not an actual or potential competitor
238
The applicant submits that the Commission infringed Article 101 TFEU and Article 53 of the EEA Agreement by finding it liable for the single and continuous infringement on routes on which it did not operate and on which it could not legally operate pursuant to the applicable international air-service agreements (‘ASAs’). The applicant puts forward three arguments in support of that claim.
239
In the first place, the applicant submits that the application of Article 101 TFEU and Article 53 of the EEA Agreement is generally predicated on the existence of actual or, at least, potential competition between the undertakings in question. It states that it could not legally provide freight services on the routes referred to in Article 1 of the contested decision other than EEA-Japan routes.
240
The applicant adds that, even if it had been possible for it to conclude with carriers agreements such as those referred to in recital 890 of the contested decision in order to operate indirectly on the routes referred to in Article 1 of that decision other than EEA-Japan routes, it could not have competed effectively on those routes.
241
The assertions which the Commission makes in recital 890 of the contested decision are, moreover, entirely new and were not made in the Statement of Objections. The applicant infers from this that the Commission failed to afford it the right to be heard on the subject of those assertions and thus breached its rights of defence.
242
In the second place, the applicant claims that the Commission cannot rely on the judgment of 22 October 2015, AC-Treuhand v Commission (C‑194/14 P, EU:C:2015:717), in order to find it liable for the single and continuous infringement on markets on which it was not an actual or potential competitor.
243
First, the Commission did not rely on the judgment of 22 October 2015, AC-Treuhand v Commission (C‑194/14 P, EU:C:2015:717), in the contested decision and to rely on it before the Court amounts to an unlawful alteration of the basis on which the applicant was found liable for the single and continuous infringement.
244
The applicant adds that the contested decision is vitiated by contradictory reasoning which makes it impossible for it to understand the reasons why it is found liable for the single and continuous infringement in so far as it relates to routes other than EEA-Japan routes. The Commission found it liable for the single and continuous infringement on those routes for two reasons which are mutually exclusive: one presupposes that the applicant is at least potentially present on the affected market, while the other presupposes that it is not present on that market.
245
Second, the scope of the judgment of 22 October 2015, AC-Treuhand v Commission (C‑194/14 P, EU:C:2015:717), is limited to cases in which the undertaking concerned actively contributed to a restriction of competition and played an essential role in the infringement under examination. The applicant did not contribute actively to the single and continuous infringement, nor did it play an essential role in the infringement.
246
In the third place, the applicant argues that it was not capable of making any contribution to the achievement of anticompetitive coordination on routes other than EEA-Japan routes and that any contacts it had with incriminated carriers operating on those other routes cannot therefore have had the aim of restricting competition within the EEA. It adds that it pursued a ‘follow-the-leader’ approach on the local markets and set the level of the surcharges at local level, in a route-specific way, so that the Commission was not entitled to find, in recital 889 of the contested decision, that the surcharges were not route-specific.
247
The Commission disputes the applicant’s line of argument.
248
As a preliminary point, it should be noted that, by the present plea, the applicant complains, in essence, that the Commission found it liable for the single and continuous infringement on intra-EEA, EU-Switzerland and EEA-third country routes other than EEA-Japan routes (‘routes between the EEA and third countries except Japan’). For reasons similar to those set out in paragraphs 231 and 237 above, the examination of this plea has become unnecessary in so far as it relates to intra-EEA and EU-Switzerland routes. The Court will therefore examine this plea only in so far as it relates to routes between the EEA and third countries except Japan.
249
That having been clarified, in order to respond to the present plea, it is appropriate, first of all, to recall the applicable principles (see paragraphs 250 to 264 below), second, to identify the grounds on which the Commission imputed to the applicant liability for the single and continuous infringement in so far as it concerns routes between the EEA and third countries except Japan (see paragraphs 265 to 277 below) and, third, to examine their merits (see paragraphs 278 to 284 below).
(a)
The applicable principles
250
It must be borne in mind that, as is apparent from paragraph 100 above, Article 101(1) TFEU prohibits all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market.
251
Accordingly, if the conduct of undertakings is to be subject to the prohibition in principle laid down in Article 101(1) TFEU, that conduct must not only reveal the existence of coordination between them – in other words, an agreement between undertakings, a decision by an association of undertakings or a concerted practice – but that coordination must also have a negative and appreciable effect on competition within the internal market (see, to that effect, judgment of 13 December 2012, Expedia, C‑226/11, EU:C:2012:795, paragraphs 16 and 17).
252
As regards agreements or concerted practices between undertakings operating at the same stage of the production or distribution chain, it is therefore necessary, as the applicant observes, for such collusion to occur between undertakings which are, if not actually, at least potentially in competition.
253
It should, however, be recalled that, as the Court of Justice held in paragraph 34 of the judgment of 22 October 2015, AC-Treuhand v Commission (C‑194/14 P, EU:C:2015:717), Article 101(1) TFEU does not concern only the undertakings operating on the market affected by the restrictions of competition. Nor is its scope limited to the undertakings operating on markets upstream or downstream of that market or neighbouring markets or undertakings which restrict their freedom of action on a particular market under an agreement or as a result of a concerted practice.
254
The text of Article 101(1) TFEU refers generally to all agreements and concerted practices which, in either horizontal or vertical relationships, distort competition on the internal market, irrespective of the market on which the parties operate, and only the commercial conduct of one of the parties need be affected by the terms of the arrangements in question (see, to that effect, judgment of 22 October 2015, AC-Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraph 35).
255
It follows that an undertaking may infringe the prohibition in principle laid down in Article 101(1) TFEU where its conduct, as coordinated with that of other undertakings, has as its object the restriction of competition on a market on which it is neither an actual competitor nor a potential competitor.
256
Those considerations apply, mutatis mutandis, to Article 53 of the EEA Agreement.
257
Contrary to what the applicant claims, it cannot be inferred from paragraph 37 of the judgment of 22 October 2015, AC-Treuhand v Commission (C‑194/14 P, EU:C:2015:717), that the scope of that judgment is limited to situations in which the undertaking concerned played an ‘essential role’ in the cartel at issue. In that judgment, the Court of Justice refrained from establishing the essential nature of the role of the undertaking concerned as a condition for incurring liability. It merely reproduced, in paragraphs 37 to 39 of that judgment, a finding of fact made by the General Court at first instance in response to the argument that the action taken by the appellant in the case which gave rise to that judgment constituted mere peripheral services that were unconnected with the obligations assumed by the producers and the ensuing restrictions of competition.
258
The Court of Justice’s reasoning was based inter alia on the case-law relating to the concept of a single and continuous infringement (judgment of 22 October 2015, AC-Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraph 30). According to that case-law, an infringement of the prohibition in principle laid down in Article 101(1) TFEU and Article 53(1) of the EEA Agreement can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of those provisions. Accordingly, if the different actions form part of an ‘overall plan’, because their identical object distorts competition within the internal market or the territory of the EEA, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 41 and the case-law cited).
259
An undertaking which has participated in such a single and complex infringement through its own conduct, which fell within the definition of an agreement or concerted practice having an anticompetitive object for the purposes of Article 101(1) TFEU or Article 53(1) of the EEA Agreement and was intended to help bring about the infringement as a whole, may accordingly be liable also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 42 and the case-law cited).
260
An undertaking may thus have participated directly in all the forms of anticompetitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, the undertaking may have participated directly in only some of the forms of anticompetitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is also entitled to attribute liability to that undertaking in relation to all the forms of anticompetitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 43).
261
It follows that three conditions must be met in order to establish participation in a single and continuous infringement, namely the existence of an overall plan pursuing a common objective, the intentional contribution of the undertaking concerned to that plan, and its awareness (proved or presumed) of the offending conduct of the other participants in which it did not participate directly (judgment of 16 June 2011, Putters International v Commission, T‑211/08, EU:T:2011:289, paragraph 35; see also judgment of 13 July 2018, Stührk Delikatessen Import v Commission, T‑58/14, not published, EU:T:2018:474, paragraph 118 and the case-law cited).
262
Even the subsidiary, accessory or passive contribution of an undertaking to the implementation of a cartel is sufficient to impute liability to that undertaking for anticompetitive conduct implemented or envisaged by other undertakings in pursuit of the same anticompetitive aim, of which it has actual or constructive knowledge (see, to that effect, judgments of 8 July 2008, AC-Treuhand v Commission, T‑99/04, EU:T:2008:256, paragraphs 133 and 134, and of 8 September 2010, Deltafina v Commission, T‑29/05, EU:T:2010:355, paragraphs 55 and 56)
263
On the other hand, the existence of a competitive relationship between the undertakings concerned is not a requirement for classifying anticompetitive conduct as a single and continuous infringement or for imputing that liability. An interpretation to the contrary would deprive the concept of ‘single and continuous infringement’ of part of its meaning, since it would exonerate those undertakings of any indirect liability based on the conduct of non-competing undertakings which, nevertheless, contribute by their conduct to achieving the overall plan specific to the single and continuous infringement (see, to that effect, judgment of 26 January 2017, Duravit and Others v Commission, C‑609/13 P, EU:C:2017:46, paragraphs 124, 137 and 138).
264
It follows that the Commission was in the present case entitled to find the applicant liable for aspects of the single and continuous infringement, the object of which was to restrict competition on routes on which it could not operate, provided that it has been shown that that undertaking intended, through its own conduct, to contribute to the common objectives pursued by all of the incriminated carriers and that it was aware of the offending conduct planned or put into effect by them in pursuit of the same objectives and in which it did not participate directly, or that it could reasonably have foreseen that conduct and was prepared to take the risk.
(b)
The grounds on which the Commission imputed to the applicant liability for the single and continuous infringement in so far as it concerns routes between the EEA and third countries except Japan
265
In recitals 862 to 868 of the contested decision, the Commission set out the case-law relating to the concept of a single and continuous infringement. In particular, in recitals 865 to 868 of that decision, it recalled that an undertaking may, under certain conditions, be found liable for a single and continuous infringement as a whole even if that undertaking did not participate directly in ‘all [its] constituent elements’. In recital 895 of that decision, the Commission reiterated that principle in response to an argument put forward by British Airways and Air Canada, which maintained that they had not been aware of the existence of a ‘wider conspiracy’.
266
In recitals 869 to 902 and in Article 1 of the contested decision, the Commission concluded that there was a single and continuous infringement, encompassing all of the contacts at issue, whether or not they took place within the EEA, and the routes concerned, whether they were inbound, outbound or intra-EEA. It found in particular, in recital 879 of that decision, that the contacts at issue sought ‘the attainment of the single objective desired by those responsible, within the framework of an overall plan’.
267
In recital 878 of the contested decision, the Commission observed that all of the incriminated carriers had been ‘involved in communications and concertation regarding the FSC with many [having participated] with regard to [the] SSC and the [refusal to pay] commission’. In recital 881 of that decision, it added that ‘the majority of the parties’, including the applicant, were involved in all three elements of the single and continuous infringement (see, also, recital 761). It is apparent from recitals 882 and 883 of that decision that the Commission thus intended to find that the applicant had participated directly in each of those elements and not that it had directly participated in only some of them, but had been aware of all the other offending conduct planned or put into effect by the other incriminated carriers in pursuit of the single anticompetitive objective, or could reasonably have foreseen it and was prepared to take the risk.
268
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 applicant had directly participated in all the anticompetitive activities which fell within those elements.
269
It was therefore on the ground that the applicant intended, irrespective of its status as a potential competitor on routes between the EEA and third countries except Japan, to contribute to the overall plan pursuing the common anticompetitive objective described in recitals 872 to 876 of the contested decision and had awareness (proved or presumed) of the offending conduct of the other incriminated carriers in which it did not participate directly that the Commission imputed to it liability for the single and continuous infringement, including in so far as it concerned routes between the EEA and third countries except Japan.
(1) The alleged contradictions in the grounds
270
Contrary to what the applicant submits, it cannot be inferred from the contested decision that the Commission intended, at the same time, to find the applicant liable for the single and continuous infringement in so far as it concerned routes between the EEA and third countries except Japan on the basis of its status as a potential competitor on those routes and thus contradicted itself.
271
In the first place, it cannot be inferred from recital 890 of the contested decision that the Commission relied on the applicant’s possible status as a potential competitor on routes between the EEA and third countries except Japan in order to find it liable in respect of those routes. That recital is the only recital in which the Commission, in essence, made reference to the existence of potential competition between the incriminated carriers on the routes on which they did not operate or could not directly operate. Contrary to what the applicant maintains, it is apparent from both its wording and its purpose and context that that recital does not concern the liability of the various incriminated carriers for the single and continuous infringement, but the existence of that infringement, which the applicant does not dispute in the context of the present plea. That recital expressly refers to the ‘existence of the single and continuous infringement’. As regards recitals 112 and 885 to 887 of the contested decision, they indicate that, for the Commission, it was a question of demonstrating that the contacts taking place in third countries or contacts concerning routes on which the incriminated carriers did not operate and could not directly operate were relevant for the purpose of establishing the existence of the single and continuous infringement or of the ‘worldwide cartel’.
272
In the second place, contrary to what the applicant maintains, the references in the contested decision to a ‘restriction of competition’ (recitals 1028 and 1277), to ‘exchanges of information between competitors’ (recital 908), to ‘arrangements between competitors directed at the coordination of their behaviour in order to remove uncertainty in the market in respect of pricing matters’ (recital 909) and to ‘contacts between competitors’ (recital 920) also do not presuppose that the Commission relied on the applicant’s possible status as a potential competitor on routes between the EEA and third countries except Japan in order to impute liability to the applicant for the single and continuous infringement in so far as it concerned those routes. Those references merely refer to the existence of agreements or concerted practices between undertakings competing on one or more markets, failing which the Commission would not have been able to conclude that there was a restriction of competition (see paragraph 252 above).
273
The applicant is therefore not entitled to rely on contradictions in the grounds on which the Commission found it liable for the single and continuous infringement in so far as it concerned routes between the EEA and third countries except Japan.
(2) The alleged novelty of the basis relied on to impute liability to the applicant for the single and continuous infringement in so far as it concerns routes between the EEA and third countries except Japan
274
The applicant is not moreover entitled to criticise the Commission for attempting to put in order at the stage of the judicial proceedings the allegedly defective statement of reasons for the contested decision by referring in the defence to a decision which it did not cite, let alone rely on, in the contested decision, namely the judgment of 22 October 2015, AC-Treuhand v Commission (C‑194/14 P, EU:C:2015:717). Contrary to what the applicant claims, the reference to that judgment in no way changes the ‘basis of liability from that alleged in the [contested decision]’. As is apparent from paragraphs 253 to 263 above, that judgment neither recognises nor creates a new basis on which the Commission could rely in order to impute liability to an undertaking for an infringement of the competition rules. It merely clarifies and defines the meaning and scope of Article 101 TFEU (and, by analogy, Article 53 of the EEA Agreement) as they must be or ought to have been understood since its entry into force and applies it to a particular case, which happens to be that of a facilitator.
275
As is apparent from paragraphs 250 to 269 above, the legal bases on which the Commission relied in the contested decision to find the applicant liable for the single and continuous infringement on routes between the EEA and third countries except Japan are Article 101 TFEU and Article 53 of the EEA Agreement, and the concept of single and continuous infringement resulting therefrom.
276
Contrary to what is further argued by the applicant, it is also those bases which are relied on in the Statement of Objections. Both in that statement and in the contested decision, the Commission relied precisely on those bases. Thus, first of all, in paragraph 3 of that statement, the Commission stated that the undertakings concerned had ‘participated in a single and continuous infringement of Article [101(1) TFEU], Article 53(1) of the [EEA Agreement] and Article 8 of the [EC-Switzerland Air Transport Agreement] … by which they [had] coordinated their pricing behaviour in the provision of [freight] services on a global basis with respect to various surcharges, freight rates and the payment of commission payable on surcharges’. Next, in paragraph 129 of the Statement of Objections, it stated that the single and continuous infringement ‘covered … freight services within the EU/EEA and Switzerland and on routes between EU/EEA airports and third countries all over the world, in both directions’. Lastly, in paragraphs 1412 to 1432 of that statement, the Commission set out the case-law on the concept of single and continuous infringement and explained how it intended to apply it to the facts of the present case.
277
In those circumstances, in accordance with what has been stated in paragraph 261 above, since the existence of an overall plan is not disputed, it is necessary to determine whether the Commission was entitled to consider that the applicant, irrespective of its status as an actual or potential competitor on routes between the EEA and third countries except Japan, could be found liable for the single and continuous infringement on routes between the EEA and third countries except Japan, in so far as it intended, through its own conduct, to contribute to the common objectives pursued by all of the incriminated carriers and was aware of the offending conduct planned or put into effect by them on those routes in pursuit of the same objectives and in which it did not participate directly, or could reasonably have foreseen that conduct and was prepared to take the risk.
(c)
The merits of the grounds on which the Commission imputed to the applicant liability for the single and continuous infringement in so far as it concerns routes between the EEA and third countries except Japan
278
In recitals 762 to 764 of the contested decision, the Commission described the ‘numerous contacts’ which the applicant maintained with competitors throughout the period in which it participated in the single and continuous infringement for the purposes of ‘coordinating price in the [freight] sector’. It is clear from those recitals that the applicant participated in the concertation on routes between the EEA and third countries except Japan. It should be noted that several contacts in which the applicant took part concerned such routes, at least in part.
279
Thus, as regards the FSC, the ‘coffee round’ which took place on 22 January 2001 at Lufthansa’s premises in Germany (recital 174), several exchanges of emails within Air Cargo Council Switzerland (‘ACCS’) (recitals 203, 204, 286, 364, 426, 502, 535, 561 and 574), discussions within the WOW alliance (recital 517) or the meetings of the BAR CSC in Hong Kong (recitals 394 and 503) and in Singapore (recital 295) should be mentioned among the evidence set out in the contested decision. As regards the SSC, reference should be made in that decision, inter alia, to the ‘WOW meeting for Europe’ (recital 630) and to the meeting of the BAR CSC in Hong Kong on 15 March 2004, in which ‘it was agreed that carriers [had to] charge [the SSC] ex [Hong Kong]’ (recital 665). As regards the refusal to pay commission, reference was made in the same decision to a multilateral meeting which took place on 12 May 2005 in Italy, during which carriers which represented ‘more than 50% of the market’, including the applicant, ‘all confirmed that [they] will not accept any [FSC/SSC] remuneration’ (recital 695) or to an email of 13 June 2005 in which the ACCS chairman sent ACCS members a ‘draft, common reply [to a letter to the Swiss freight forwarders association] in the name of ACCS … rejecting the [freight forwarders’] claims’(recital 693).
280
As regards anticompetitive activities relating to routes between the EEA and third countries except Japan in which the applicant did not directly participate, it is sufficient to observe that the applicant does not deny that it had the requisite awareness of them.
281
The applicant denies, however, that it could have knowingly contributed to the implementation of anticompetitive coordination on routes other than EEA-Japan routes.
282
In the present case, it should be noted that, as is apparent from recitals 872 to 876 of the contested decision, the single and continuous infringement pursued the single anticompetitive aim of restricting competition between the incriminated carriers on surcharges at least within the European Union, the EEA and Switzerland.
283
It is apparent from the contested decision that the applicant intended to contribute by its own conduct to the achievement of that aim. The applicant not only encouraged the continuation of the single and continuous infringement and compromised its discovery by failing to distance itself publicly from the content of the contacts relating to routes between the EEA and third countries except Japan in which it took part or to report them to the competent administrative authorities, but also, by coordinating the surcharges and the refusal to pay commission on EEA-Japan routes, helped to ensure that freight forwarders could not circumvent the payment of surcharges on routes between the EEA and third countries except Japan by using alternative routes inter alia via Japan and, consequently, contributed to the achievement of the common anticompetitive aim identified in recitals 872 to 876 of the contested decision (see paragraph 159 above).
284
It follows that the Commission made no error in finding the applicant liable for the single and continuous infringement in so far as it concerns routes between the EEA and third countries except Japan, irrespective of its possible status as a potential competitor on those routes. The present plea must therefore be rejected.
6.
The sixth plea, alleging breach of the rights of the defence, of the principle of non-discrimination and of the principle of proportionality on account of the application of different evidential requirements to different carriers
285
The applicant claims that the Commission infringed the obligation to state reasons and breached the principles of non-discrimination and proportionality by applying different evidential requirements to different carriers. First, it submits that the Commission failed to give an adequate statement of the reasons for its decision to find the applicant liable but not other carriers that were not incriminated and with regard to which the Commission has similar evidence to that which it used against the applicant.
286
Second, the applicant maintains that the Commission breached the principle of non-discrimination by concluding that the conduct of one undertaking constituted an infringement, while at the same time deciding that the very similar conduct of another undertaking did not, thus applying different standards of proof to the two undertakings concerned.
287
Third, the applicant claims that the Commission has breached the principle of proportionality by fining it for a serious infringement while choosing not to penalise similar conduct on the part of other carriers. The gravity factor of 16% applied to it is disproportionate, since the Commission did not deem the infringement at issue to be sufficiently serious to justify the taking of measures against certain non-incriminated carriers.
288
The Commission disputes the applicant’s line of argument.
289
It should be noted at the outset that, even if the Commission had committed an unlawful act by not holding the non-incriminated carriers liable, such an unlawful act, which was not the subject of the present action before the Court, cannot under any circumstances lead it to find that the applicant has been the subject of discrimination and therefore of an unlawful act, since it follows from the case-law that the principle of equal treatment must be reconciled with the principle of legality, according to which a person may not rely, in support of his or her claim, on an unlawful act committed in favour of a third party (judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 55).
290
Moreover, it must be recalled that the principle of equal treatment, which is 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).
291
Breach of the principle of equal treatment as a result of different treatment thus presupposes that the situations concerned are comparable, having regard to all the elements which characterise them. The elements which characterise different situations, and hence their comparability, must in particular be determined and assessed in the light of the subject matter and purpose of the EU act which makes the distinction in question (see judgment of 20 May 2015, Timab Industries and CFPR v Commission, T‑456/10, EU:T:2015:296, paragraph 202 and the case-law cited).
292
In the present case, the applicant claims, in essence, that the Commission breached the principle of equal treatment by penalising it while refraining from finding the non-incriminated carriers liable and from consequently penalising them.
293
However, the applicant has in no way established that those carriers were in a situation comparable to its own. While the applicant states that their conduct was similar, it fails to demonstrate that the Commission had a body of evidence against the carriers in question that was comparable to that which it had against the applicant.
294
The complaint alleging breach of the principle of equal treatment must therefore be rejected.
295
As to the alleged infringement of the obligation to state reasons and of the rights of the defence, it must be recalled that the Commission is under no obligation to set out, in a decision finding an infringement of Article 101 TFEU, the reasons for which other undertakings have not had proceedings brought against them or been penalised. 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).
296
The complaint alleging failure to state reasons and breach of the rights of the defence must therefore be rejected.
297
As regards the complaint alleging breach of the principle of proportionality, it is sufficient to observe that it is based on the incorrect premiss that the Commission had a similar body of evidence against the applicant and against the non-incriminated carriers.
298
In the light of the foregoing, the third complaint raised by the applicant must be rejected and, consequently, this plea must be rejected in its entirety.
7.
The seventh plea in law, alleging infringement of the 2006 Guidelines and breach of the principle of proportionality
299
The seventh plea, by which the applicant submits that the Commission infringed the 2006 Guidelines and breached the principle of proportionality when setting the amount of the fine, is divided, in essence, into two parts. They relate, first, to the determination of the value of sales and, second, to the setting of the gravity factor and the additional amount.
(a)
The first part, relating to the determination of the value of sales
300
The applicant submits that the Commission determined the value of sales by reference to the turnover generated by the sale of freight services generally, rather than by reference to the revenue derived specifically from the FSC and the SSC with which the single and continuous infringement was associated. It puts forward two complaints, alleging, first, infringement of point 13 of the 2006 Guidelines and, second, breach of the principle of proportionality.
(1) The first complaint, alleging infringement of point 13 of the 2006 Guidelines
301
The applicant claims that the Commission infringed point 13 of the 2006 Guidelines by finding that the single and continuous infringement was linked to rates and by therefore including revenues derived from rates in the value of sales. According to the applicant, that infringement relates only to the FSC, the SSC and the refusal to pay commission, not to rates, which were excluded from its scope ‘for insufficient evidence’.
302
The judgments of 6 May 2009, KME Germany and Others v Commission (T‑127/04, EU:T:2009:142), and of 19 May 2010, KME Germany and Others v Commission (T‑25/05, not published, EU:T:2010:206), are of no assistance to the Commission. Those judgments concerned the calculation of fines not under the 2006 Guidelines, but under 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), which follow a very different calculation methodology. In addition, there are clear factual differences between the present case and those which gave rise to the abovementioned judgments. The latter concerned the taking into account of production costs for the purpose of setting the amount of the fine. However, rates are not comparable to production costs, but are akin to a distinct price component in relation to which the Commission did not find an infringement. At the stage of the reply, the applicant adds that the exclusion of rates from the value of sales would not lead to ‘insoluble disputes’ as was at issue in the case which gave rise to the judgment of 8 December 2011, KME Germany and Others v Commission (C‑272/09 P, EU:C:2011:810).
303
The Commission disputes the applicant’s line of argument.
304
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, 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).
305
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 deduce 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). Contrary to what the applicant claims, that is the case even where the scope of the infringement referred to in the statement of objections is broader than that found in the final decision, which is irrelevant for the purposes of applying point 13 of the 2006 Guidelines.
306
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.
307
It follows that, contrary to what the applicant claims, point 13 of the 2006 Guidelines does not preclude the Commission from taking into account the entire amount of sales linked to the services at issue without splitting that amount into its component elements.
308
In addition, it should be observed that the approach advocated by the applicant amounts to considering that the price elements which were not the subject of coordination must be excluded from the value of sales.
309
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 applicant maintains, the same applies to price elements which, like rates, were not specifically the subject of 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).
310
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).
311
While it is true that the applicant contests this, it confines itself to submitting that it would not be difficult to apply in the circumstances of the present case, without explaining how the refusal to pay commission would be taken into account or contesting whether allegations of discrimination might occur.
312
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 freight services should be taken into account without splitting that amount into its component elements.
313
The present complaint must therefore be rejected.
(2) The second complaint, alleging breach of the principle of proportionality
314
The applicant claims that the Commission’s approach is contrary to the principle of proportionality. That approach does not reflect the economic importance of the infringement in question. During the 2004/2005 financial year, the applicant’s revenues attributable to the FSC and the SSC represented only a ‘minor’ proportion of its total revenues from the sale of freight services on EEA-third country routes for that financial year (around 12%).
315
The Commission disputes the applicant’s line of argument.
316
It must be recalled that the principle of proportionality requires that the measures adopted by the EU institutions must not exceed what is appropriate and necessary for attaining the legitimate objective pursued (judgments of 13 November 1990, Fedesa and Others, C‑331/88, EU:C:1990:391, paragraph 13, and of 12 September 2007, Prym and Prym Consumer v Commission, T‑30/05, not published, EU:T:2007:267, paragraph 223).
317
In the procedures initiated by the Commission in order to penalise infringements of the competition rules, the application of the principle of proportionality requires that fines must not be disproportionate to the objectives pursued, that is to say, to compliance with those rules, and that the amount of the fine imposed on an undertaking for an infringement in competition matters should be proportionate to the infringement, seen as a whole, having regard, in particular, to its gravity and its duration (see judgment of 29 February 2016, Panalpina World Transport (Holding) and Others v Commission, T‑270/12, not published, EU:T:2016:109, paragraph 103 and the case-law cited).
318
In order to assess the gravity of an infringement of the competition rules, the Commission must take account of a large number of factors, the nature and importance of which vary according to the type of infringement and the particular circumstances of the case. Those factors may, depending on the circumstances, include the volume and value of the goods in respect of which the infringement was committed and the size and economic power of the undertaking and, consequently, the influence which the undertaking was able to exert on the market (judgment of 3 September 2009, Prym and Prym Consumer v Commission, C‑534/07 P, EU:C:2009:505, paragraph 96).
319
According to the case-law, the proportion of the overall turnover which derives from the sale of the goods or services which are the subject of the infringement best reflects the economic importance of that infringement (judgment of 29 February 2016, Panalpina World Transport (Holding) and Others v Commission, T‑270/12, not published, EU:T:2016:109, paragraph 106).
320
The value of sales also has the advantage of being an objective criterion which is easy to apply. It thus means that the action of the Commission is more foreseeable for undertakings and enables them, in pursuit of an objective of general deterrence, to assess the size of the fine they are liable to incur when they decide to take part in an unlawful cartel (see, to that effect, judgment of 29 February 2016, Panalpina World Transport (Holding) and Others v Commission, T‑270/12, not published, EU:T:2016:109, paragraph 159).
321
Point 6 of the 2006 Guidelines sets out those principles as follows:
‘… the combination of the value of sales to which the infringement relates and of the duration of the infringement is regarded as providing an appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement. Reference to these factors provides a good indication of the order of magnitude of the fine and should not be regarded as the basis for an automatic and arithmetical calculation method.’
322
In recital 1190 of the contested decision, the Commission specifically concluded that account should be taken of the overall turnover from the sale of freight services rather than only of the elements of their price which specifically were the subject of coordination between the incriminated carriers, namely the surcharges.
323
Contrary to what the applicant submits, the mere fact that the surcharges represented only a ‘minor’ proportion of its total revenues from the sale of freight services on EEA-third country routes for the 2004/2005 financial year does not prove that that approach was disproportionate in the light of the economic importance of the single and continuous infringement.
324
The very fact that an undertaking achieves sales at prices of which only one or several elements have been fixed or have been the subject of unlawful exchanges of information entails a distortion of competition affecting the entire relevant market (see, to that effect, judgment of 23 April 2015, LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 62).
325
As regards the impact of the single and continuous infringement on the EEA market, it must be borne in mind that the determination of the value of sales does not take account of criteria such as the actual impact of the infringement on the market or the damage caused (see, to that effect, judgments of 29 February 2016, UTi Worldwide and Others v Commission, T‑264/12, not published, EU:T:2016:112, paragraph 259, and of 12 July 2018, Viscas v Commission, T‑422/14, not published, EU:T:2018:446, paragraph 193).
326
It is only at the separate and later stage of determining the gravity factor, which is the subject of the second part of the present plea, that the Commission may, where appropriate, take account of such a criterion (see, to that effect, judgment of 29 February 2016, Panalpina World Transport (Holding) and Others v Commission, T‑270/12, not published, EU:T:2016:109, paragraph 94).
327
It follows that the approach followed in recital 1190 of the contested decision, consisting of taking into account the overall turnover deriving from the sale of freight services, is appropriate for the purposes of contributing to the attainment of the first objective referred to in point 6 of the 2006 Guidelines, which is to reflect adequately the economic importance of the single and continuous infringement. Moreover, the applicant does not demonstrate that that approach was inappropriate for the purposes of contributing to the attainment of the second objective referred to in that point, which is to reflect adequately the relative weight of each of the incriminated carriers.
328
Nor can the applicant maintain that the Commission penalised it as if the cartel at issue had also covered rates. In accordance with the general methodology laid down by the 2006 Guidelines, the nature of the infringement is taken into account at a later stage of calculating the fine, in the determination of the gravity factor, which, pursuant to point 20 of those guidelines, is to be assessed on a case-by-case basis for all types of infringements, taking account of all the relevant circumstances of the case (judgment of 29 February 2016, Schenker v Commission, T‑265/12, EU:T:2016:111, paragraphs 296 and 297).
329
The Commission therefore did not breach the principle of proportionality when it concluded, in recital 1190 of the contested decision, that the entire amount of sales linked to freight services had to be taken into account without splitting that amount into its component elements.
330
The present complaint must therefore be rejected, as must the present part of the plea in its entirety.
(b)
The second part, concerning the setting of the gravity factor and the additional amount
331
The applicant submits that the Commission breached the principle of proportionality by setting the gravity factor at 16% and applying an additional amount of 16% to it, even though the scope of the single and continuous infringement was less significant than that which it was alleged to have committed in the Statement of Objections. It adds that the contested decision is silent on the matter of how the significant narrowing of the scope of that infringement as compared to the infringement set out in the Statement of Objections affected the calculation of the amount of the fine.
332
At the hearing, the applicant stated that this part of the plea had to be interpreted as alleging not only a breach of the principle of proportionality but also a failure to state reasons.
333
The Commission disputes the applicant’s line of argument.
334
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.
335
Points 19 to 23 of the 2006 Guidelines provide 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.’
336
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).
337
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.
338
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).
339
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’.
340
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’.
341
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’.
342
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 be warranted in view of the very nature of the single and continuous infringement.
343
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).
344
However, the applicant does not dispute the merits of those factors for the purposes of setting the gravity factor.
345
In those circumstances, the applicant cannot claim that a gravity factor of 16% was unlawful.
346
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 even 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.
347
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).
348
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.
349
The arguments put forward by the applicant with regard to the additional amount overlap with those it raised with regard to the gravity factor, which the Court has already rejected. Accordingly, those arguments cannot succeed.
350
As regards the argument that there is an inadequately reasoned discrepancy between the contested decision and the Statement of Objections as regards the determination of the gravity factor and the additional amount, it has no basis in law or in fact.
351
In law, it is sufficient to observe that the Commission is not obliged to explain any differences between the final assessments contained in the final decision and the provisional assessments set out in the statement of objections (see judgment of 27 February 2014, InnoLux v Commission, T‑91/11, EU:T:2014:92, paragraph 96 and the case-law cited).
352
In fact, it should be observed that, in paragraphs 1567 to 1581 of the Statement of Objections, the Commission indicated that it intended to impose a fine on the carriers concerned and defined the principal elements of fact and of law which it intended to take into account for that purpose. On the other hand, in so far as, according to settled case-law, other factors were not required (see judgment of 19 May 2010, Wieland-Werke and Others v Commission, T‑11/05, not published, EU:T:2010:201, paragraph 129 and the case-law cited), the Commission did not indicate in that statement to what proportion of the value of sales it intended to set the gravity factor and the additional amount.
353
It follows that there is no discrepancy between the Statement of Objections and the contested decision as regards the percentage at which the gravity factor and the additional amount were set.
354
This part of the plea must therefore be rejected, as, accordingly, must the seventh plea in its entirety.
8.
The eighth plea, alleging infringement of the 2006 Guidelines and breach of the principle of the protection of legitimate expectations as regards the inclusion in the value of sales of turnover from the sale of inbound freight services to customers outside the EEA
355
The applicant complains that the Commission infringed the 2006 Guidelines and breached the principle of the protection of legitimate expectations by including in the value of sales revenues derived from inbound freight services sold to customers outside the EEA.
356
According to the applicant, only sales made in the EEA may be included in the value of sales. Sales outside the EEA may be taken into account, under point 18 of the 2006 Guidelines, only in the exceptional case where ‘the relevant sales of the undertaking within the EEA may not properly reflect the weight of each undertaking in the infringement’. There were no such exceptional circumstances in the present case and, in any event, the Commission does not purport that there were.
357
The applicant adds that the Commission’s approach diverges from the general rule laid down in Regulation No 139/2004, according to which turnover should be allocated to the place where the customer is located. Applying that principle to the transportation of goods, the applicant observes that the Consolidated Jurisdictional Notice states that ‘cases concerning the transport of goods are different, as the customer, to whom the services are provided, does not travel, but the transport service is provided to the customer at its location’, so that the ‘location of the customer is the relevant criterion for the allocation of turnover’.
358
The applicant also refers to the Commission’s decision of 28 January 2009 in Case COMP/39.406 – Marine hoses, from which it is apparent that the methodology it applied to the geographic allocation of turnover under the 2006 Guidelines is consistent with the approach in the Consolidated Jurisdictional Notice.
359
The applicant also states that competition relating to inbound freight services takes place in the third country and for the business of customers located in and purchasing services in that country. Any effects of the single and continuous infringement on competition as regards inbound freight services would therefore have been felt in third countries.
360
The Commission disputes the applicant’s line of argument.
361
In that regard, it should be borne in mind 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 the sales in question were of ‘goods or services to which the infringement directly or indirectly relates in the relevant geographic area within the EEA’.
362
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, contrary to what the applicant maintains, 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 invoiced in the EEA. Otherwise, an undertaking participating in an infringement would merely have to ensure that it negotiates its sales with subsidiaries of its customers located outside the EEA or invoices those sales to them in order to ensure that those sales would not be taken into account in the calculation 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).
363
Contrary to the applicant’s further submission, the Commission is likewise not obliged, for the purposes of applying point 13 of the 2006 Guidelines, to opt for the criteria which have been deemed relevant in the field of the control of concentrations, inter alia those identified in the notice referred to in paragraph 357 above. The aim of the latter is to provide guidance on jurisdictional issues arising in the context of merger control. It therefore does not bind the Commission as regards the method to be adopted for calculating the amount of fines in cartel cases, which is based on specific aims (judgment of 29 February 2016, Kühne + Nagel International and Others v Commission, T‑254/12, not published, EU:T:2016:113, paragraph 252; see also, to that effect, judgment of 9 September 2015, Samsung SDI and Others v Commission, T‑84/13, not published, EU:T:2015:611, paragraph 206).
364
As regards the interpretation of the concept of ‘sales … within the EEA’ which the applicant seeks to draw inter alia 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 that case, 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, paragraph 262 and the case-law cited).
365
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 304 and 319 to 321 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).
366
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.
367
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 freight services on outbound routes and sales of inbound freight services.
368
In the same recital, 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]’.
369
As is apparent from paragraphs 77 to 165 above and contrary to what the applicant maintains, 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 emphasised that part 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% in the basic amount of the fine in respect of EEA-third country routes, the merits of which the applicant does not dispute.
370
In those circumstances, to hold that the Commission could not include in the value of sales 50% of the turnover achieved 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.
371
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 applicant’s 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).
372
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 111 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.
373
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. Accordingly, point 18 of those guidelines, which was not applied in the contested decision and which the applicant acknowledges is not applicable in the present case, is irrelevant.
374
This plea must therefore be rejected and it must be concluded that the Commission was entitled to include sales of inbound freight services in the value of sales and did not thereby breach the principle of the protection of legitimate expectations.
9.
The ninth plea, alleging breach of the principle of proportionality as regards the general 15% reduction
375
The applicant maintains that the Commission breached the principle of proportionality by setting the general 15% reduction at an excessively low level.
376
In the first place, the applicant submits that the Commission failed to take sufficient account of the Japanese regulatory regime. The ASAs governing the routes between Japan, on the one hand, and France, Germany, Italy and the Netherlands, on the other hand, each contain provisions which require designated carriers to enter into agreements on tariffs between themselves. In addition, Japanese law requires local and foreign companies, on pain of penalties, to seek approval from the Japanese Civil Aviation Bureau (JCAB) in order to establish fares or charges which they apply in respect of freight services on flights from or to Japan. The agreements thus approved enjoy, in principle, immunity under Japanese competition law. The applicant claims that that regulatory regime strongly encouraged it to concert with other carriers and that the Commission should therefore have granted it, on that basis, a reduction in the amount of the fine of more than 15%.
377
In the second place, the applicant relies on two decisions in which the Commission granted the undertakings concerned reductions of 30 or 40% in the amount of the fine that had been imposed on them, on the ground that the applicable regulatory regime had encouraged them to adopt anticompetitive agreements.
378
The Commission disputes the applicant’s line of argument.
379
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.
380
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 authorisation or encouragement of the anticompetitive conduct in question by public authorities or by legislation.
381
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, including that of Japan, had encouraged the incriminated carriers to engage in anticompetitive conduct and, consequently, granted them the general 15% reduction, in accordance with point 29 of the 2006 Guidelines.
382
In its written pleadings, the applicant merely maintains that the ASAs and the legislative provisions applicable in Japan may have encouraged it to concert with other carriers. On the other hand, it does not rely on any legal or factual evidence which the Commission failed to take into account in the contested decision and which would substantiate the claim that the general 15% reduction was insufficient. It must therefore be held that the applicant has failed to demonstrate both that the reduction was insufficient and, consequently, that the principle of proportionality was breached.
383
Furthermore, even if, by its claims that the ASAs concluded by Japan ‘require’ price concertation between the designated carriers, the applicant seeks to call into question the Commission’s analysis in recital 1263 of the contested decision that those ASAs merely encouraged or made it easier to adopt anticompetitive conduct, its argument must also be rejected. In the first place, it should be observed that the ASAs either encouraged the conduct at issue on EEA-Japan routes, in which case a reduction in the amount of the fine may be justified under point 29 of the 2006 Guidelines, 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).
384
Inasmuch as the applicant submits, in essence, in the present part of the plea, that the ASAs concluded by Japan required coordination, its line of argument must be rejected as inoperative in so far as, if it were well founded, it would vitiate the finding of an infringement, not the application of point 29 of the 2006 Guidelines, which is at issue in the present part of the plea.
385
Moreover, in response to the questions put by the Court at the hearing, the applicant failed to clarify whether it was relying on coercion or mere encouragement. It thus indicated that the relevant legislation ‘require[d] coordination’, that ‘there [had] been encouragement’ and, lastly, that there was a ‘system designed to encourage people to comply with one provision or another’.
386
In the second place, and in any event, it should be noted that the applicant’s line of argument is based on an incorrect analysis of the ASAs in question. The relevant clause of those ASAs provides that an agreement at IATA level must be reached ‘wherever possible’, which does not establish the existence of an obligation. The same clause provides that, if an agreement is not possible, tariffs in respect of ‘each of the specific routes’ must be agreed ‘between the designated airlines concerned’. By contrast, that clause cannot be interpreted as meaning that it requires multilateral discussions on the tariffs applicable to different routes.
387
As regards the references to previous Commission decisions, 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 applicant cannot therefore rely on the reduction in the amount of fines granted in those other cases.
388
In so far as the applicant asks the Court to rule on the appropriateness of the general 15% reduction, suffice it to note that such review falls within the exercise of unlimited jurisdiction and will therefore be carried out in that context (see paragraph 448 below).
389
It follows from the foregoing that the ninth plea is unfounded and must therefore be rejected.
10.
The tenth plea, alleging breach of the principle of non-discrimination, of the principle of proportionality and, in essence, of the obligation to state reasons as a result of the Commission’s refusal to reduce the amount of the fine on account of the applicant’s limited involvement in the single and continuous infringement
390
The applicant submits that the Commission erred in failing to grant it a 10% reduction in the basic amount of the fine as it did in the case of Air Canada, Latam, SAS and Qantas on account of the limited involvement of those carriers in the single and continuous infringement. According to the applicant, it is in the same situation as those carriers and the Commission’s refusal to grant it a reduction is discriminatory.
391
The applicant thus alleges that it operated on the periphery of the infringement set out in the contested decision and engaged in only a limited number of contacts relating to a limited number of routes, and did so only passively. It submits that the role played by SAS and Qantas in the cartel at issue was very similar to its own.
392
In addition, the applicant maintains that its involvement in the refusal to pay commission was certainly no more extensive than that of SAS or Qantas, as is evidenced, in its view, by a series of emails from Qantas concerning the payment of commission on the surcharges.
393
According to the applicant, the distinction drawn by the Commission between it and those two carriers is not objectively justified and, in any event, is not sufficiently reasoned. In addition, the Commission did not specifically examine its situation in the light of point 29 of the 2006 Guidelines.
394
The Commission disputes the applicant’s line of argument.
395
In that regard, it should be borne in mind that point 29 of the 2006 Guidelines sets out, among the types of mitigating circumstances which may be taken into account in order to reduce the basic amount of the fine, the substantially limited nature of the involvement of the undertaking in question in the infringement.
396
First of all, as regards the applicant’s criticism that the criterion of substantially limited involvement referred to in point 29 of the 2006 Guidelines was not applied to it, it should be borne in mind that the criterion of substantially limited involvement is more demanding than that relating to the ‘follow-my-leader’ or exclusively passive role of the undertaking found liable: it reflects the Commission’s choice, when the 1998 Guidelines referred to in paragraph 302 above were replaced by the 2006 Guidelines, no longer to ‘encourage’ passive conduct by those participating in an infringement of the competition rules (judgment of 12 July 2018, Sumitomo Electric Industries and J-Power Systems v Commission, T‑450/14, not published, EU:T:2018:455, paragraph 114).
397
The application of the criterion of substantially limited involvement presupposes that a set of conditions are met, some of which share the same assessment factors as the criterion of an exclusively passive role: that is particularly the case with regard to the frequency of participation in meetings compared to other cartel members or the perception, by the other participants in the cartel, of the role played by the undertaking in question in the cartel (see, to that effect, judgments of 12 December 2014, Eni v Commission, T‑558/08, EU:T:2014:1080, paragraphs 190 and 191, and of 12 July 2018, Sumitomo Electric Industries and J-Power Systems v Commission, T‑450/14, not published, EU:T:2018:455, paragraphs 117 to 119).
398
In recital 1257 of the contested decision, the Commission considered that the applicant had not played a passive or minor role in the single and continuous infringement and that its involvement in the infringement had not been substantially limited. In that decision, the Commission relied in that regard, first, on the frequency and nature of the contacts between the applicant and the other carriers throughout the entire period of the infringement (recital 1253) and, second, on the absence of any evidence put forward by the applicant to demonstrate its lack of anticompetitive intention (recital 1254). It therefore ruled out granting the applicant a reduction in the basic amount of the fine on that basis.
399
Accordingly, it has not been established that the Commission erred in refusing to grant the applicant the benefit of a mitigating circumstance relating to its substantially limited involvement in the single and continuous infringement.
400
Even if the applicant is also referring to the other examples of mitigating circumstances mentioned in point 29 of the 2006 Guidelines, it does not refer to any of them specifically, let alone allege any circumstance such as to justify a reduction in the fine being granted to it on that basis. In the absence of any specific evidence in support of those claims, the Court must reject them.
401
Next, as regards the purported discriminatory treatment of the applicant compared to the carriers that were granted the 10% reduction in the basic amount of the fine, it must be recalled that, in recitals 1258 and 1259 of the contested decision, the Commission considered that Latam, Air Canada and SAS had had limited involvement in the single and continuous infringement, in so far as they operated on the periphery of the cartel at issue, entered into a limited number of contacts with other carriers and had not participated in all elements of the infringement. It accordingly granted them a reduction of 10% in the basic amount of the fine. In the Decision of9 November 2010, it also granted, on the same basis and for the same reasons, such a reduction to Qantas. On the other hand, it did not consider that it was appropriate to conclude that the applicant had limited involvement in the single and continuous infringement and, consequently, did not grant it a reduction in the basic amount of the fine on that basis.
402
The Court has held, in paragraph 399 above, that it has not been established that the applicant had played a passive role in the single and continuous infringement or had substantially limited involvement in it. In those circumstances, even if the applicant were to establish that it was in a situation comparable to that of the carriers that were granted the 10% reduction in the basic amount of the fine, this would amount, in essence, to the applicant relying on unlawful acts committed in determining the amount of the fine imposed on those other carriers, which it cannot do (see paragraph 289 above).
403
In any event, in connection with the present plea, it must be held that the applicant’s situation was not comparable to that of the other carriers referred to in paragraph 401 above for the purposes of applying the mitigating circumstance relating to limited involvement in the infringement.
404
It should be noted that, unlike those carriers, the applicant was directly involved in the three elements of the single and continuous infringement (recitals 881 to 883 of the contested decision), which it does not dispute. From the point of view of its contribution to the gravity of the cartel at issue, the fact that an undertaking is found liable, in respect of certain elements of a single and continuous infringement, in the light of its direct involvement in the conduct at issue constitutes a relevant circumstance capable of distinguishing its situation from that of undertakings found liable solely on account of their awareness, presumed or proved, of that conduct.
405
In addition, contrary to what is argued by the applicant with regard specifically to SAS and Qantas, the evidence in the file shows that the applicant’s level of involvement in the refusal to pay commission is not comparable to that of those two undertakings. As is apparent from the contested decision, the applicant participated in several multilateral discussions relating to that element of the single and continuous infringement within the ACCS in Switzerland (recitals 692 and 693) and in Italy, within the Italian Board of Airline Representatives (‘the IBAR’) (recital 694), at Lufthansa’s premises in Italy (recital 695) and in Milan (recital 696). That situation contrasts, first of all, with that of Qantas, in respect of which only a bilateral exchange with British Airways would support, as the case may be, the finding that it was involved in that element of the infringement (recital 685). The applicant’s situation also contrasts with that of SAS. In that regard, contrary to what the applicant suggests, the fact that SAS is a member of the ACCS is irrelevant, since its involvement in the exchanges in question, referred to in recitals 692 and 693 of that decision, is not alleged. The applicant also cites two multilateral contacts, referred to respectively in recitals 503 and 686 of that decision, in which both SAS and the applicant participated. The applicant is however incorrect in stating that the Commission relied on the first of those contacts to establish its involvement in the refusal to pay commission, since that evidence served only in relation to the part of the infringement concerning the FSC. In addition, while it is true that SAS was involved in the exchange referred to in recital 686 of that decision, that contact must be considered in the light of the other contacts involving the applicant, which have been set out above. Those contacts remain more numerous and varied than those involving SAS, including once account is taken of the contacts on which the applicant relies, which are in the file but are not referred to in the decision in question, in the context of which SAS, with several competing carriers, allegedly dealt with a freight forwarder’s request for commission on surcharges.
406
Moreover, it was also in the light of the limited contacts with other carriers that the Commission considered that SAS had had more limited involvement in the infringement, as is apparent from paragraph 401 above. The applicant has adduced no evidence capable of invalidating the finding that it was involved in a greater number of contacts with a greater number of carriers.
407
It follows that, in so far as the applicant’s situation differs from that of the carriers which were granted a reduction on account of their limited involvement in the single and continuous infringement, it is not entitled to complain of discriminatory treatment. Consequently, the applicant’s claim that insufficient reasons were given as to the objectively justified nature of the distinction made must also be rejected, in so far as it is based on the incorrect premiss that its situation was comparable to that of the other carriers at issue.
408
Lastly, by its complaint alleging breach of the principle of proportionality, the applicant seeks to raise, in essence, the disproportionate nature of the amount of the fine in the light of its allegedly limited involvement.
409
In the present case, first, as is apparent from the contested decision, the applicant was directly involved in the three elements of the single and continuous infringement (see paragraphs 404 and 405 above). That finding is not invalidated by its claim that its involvement in the element of that infringement relating to the refusal to pay commission was intended solely as a reaction to the concerted efforts of freight forwarders and was not aimed at price coordination. It must be stated that that allegation is based on two incorrect premisses, one legal and the other factual.
410
It is indeed apparent from recitals 675 to 702 of the contested decision, which include the recitals relied on specifically against the applicant, that the issue of the payment of commission was the subject of divergent legal interpretations between carriers and freight forwarders. However, the incriminated carriers did not confine themselves to defining a common position on that point in order to defend it in a coordinated way before the courts having jurisdiction or to promote it collectively before the public authorities and other professional associations. On the contrary, the incriminated carriers acted in concert by agreeing – at a multilateral level – to refuse to negotiate the payment of commission with freight forwarders and to grant them discounts on the surcharges. Thus, in recital 695 of the contested decision, the Commission referred to an email of 19 May 2005, in which the regional manager of Swiss in Italy stated that ‘all [the participants in a meeting held on 12 May 2005 had] confirmed that [they] will not accept any FS[C]/SS[C] remuneration’. In recital 696 of the contested decision, reference is made to an internal email of 14 July 2005 in which CPA states that ‘everyone [who had participated in a meeting the day before, including the applicant,] reconfirmed the firm intention not to accept any negotiation’ concerning the payment of commissions. Similarly, in recital 700 of that decision, the Commission relied on an internal email in which an employee of Cargolux informed its head office that a meeting was held ‘with all [carriers] operating at [Barcelona airport]’ and indicated that ‘it was a general opinion that we [should] not pay any [commission] on surcharges’.
411
It is also apparent from the contested decision that several carriers exchanged information – at a bilateral level – to assure each other of their continued adherence to the previously agreed upon refusal to pay commission. By way of illustration, recital 688 of that decision describes a phone call on 9 February 2006 in which Lufthansa asked AF whether its position concerning the refusal to pay commission remained unchanged.
412
From a legal standpoint, in so far as the applicant submits that the refusal to pay commission was a legitimate response to the allegedly unlawful conduct of freight forwarders, it must be borne in mind that an undertaking cannot rely on the conduct of other undertakings, even if it is unlawful or unfair, to justify infringement of the rules on competition (see, to that effect, judgments of 8 July 2004, Dalmine v Commission, T‑50/00, EU:T:2004:220, paragraph 333, and of 12 July 2018, LS Cable & System v Commission, T‑439/14, not published, EU:T:2018:451, paragraph 53).
413
It is for public authorities and not private undertakings or associations of undertakings to ensure compliance with statutory requirements (judgment of 7 February 2013, Slovenská sporiteľňa, C‑68/12, EU:C:2013:71, paragraph 20). Undertakings are not entitled to take the law into their own hands by substituting themselves for those authorities to penalise any infringements of EU competition law and by preventing, through measures adopted on their own initiative, competition within the internal market. That is particularly the case where there are legal means by which they may assert their rights before those authorities (see, to that effect, judgment of 12 December 1991, Hilti v Commission, T‑30/89, EU:T:1991:70, paragraphs 117 and 118).
414
In the present case, the applicant neither demonstrates nor even alleges that such legal means were missing.
415
Second, as the Commission rightly observes, neither the number of anticompetitive contacts found in the contested decision in which the applicant participated, which amounts to almost 75, nor the number of other carriers involved in those contacts, namely nine incriminated carriers in total, can be regarded as limited in their number and intensity.
416
Third, contrary to what the applicant claims, its involvement in the cartel at issue did not consist essentially in passively receiving the announcements communicated by the other carriers. It is sufficient to note that the contested decision refers to numerous meetings and bilateral and multilateral discussions which go beyond the mere receipt of price announcements by email (recitals 762 to 764).
417
The present plea must therefore be rejected.
418
In the light of all the foregoing considerations, the second part of the first plea must be upheld. Consequently, Article 1(1)(h) and Article 1(4)(h) of the contested decision must be annulled.
419
On the other hand, it cannot be held that that illegality is such as to entail the annulment of the contested decision in its entirety. Although the Commission infringed the rules on limitation by penalising the applicant for the single and continuous infringement in respect of intra-EEA routes and EU-Switzerland routes, it must be held that the applicant has not demonstrated, in the present action, that the Commission erred in finding that it had participated in that infringement.
420
The other heads of claim seeking annulment must be dismissed.
B. The claim for alteration of the amount of the fine imposed on the applicant
421
In support of its claim for a reduction in the amount of the fine imposed on it, the applicant relies on a single plea in law. This plea alleges that the amount of that fine was inappropriate and is subdivided into 11 arguments.
422
The first four arguments relied on by the applicant in support of this claim concern, in essence, the calculation of the value of sales:
–
by its first argument, the applicant claims that the limitation period prevents it from being penalised for conduct relating to intra-EEA routes and to EU-Switzerland routes;
–
by its second argument, the applicant submits that, in the event that the Court upholds the fifth or eighth plea and annuls the contested decision to the extent that it relates to inbound freight services, the revenues which the applicant derived from such services should be excluded for the purposes of calculating the amount of the fine or the amount of the fine should be reduced accordingly, in such manner as the Court sees fit;
–
by its third argument, the applicant complains that the Commission infringed the 2006 Guidelines and breached the principle of the protection of legitimate expectations by including in the value of sales revenues derived from inbound freight services;
–
by its fourth argument, the applicant submits that, since the Commission excluded rates from the scope of the single and continuous infringement, the revenues which the applicant derived from them should be excluded from the value of sales or the amount of the fine should be reduced to such level as the Court sees fit;
423
The fifth and sixth arguments relied on by the applicant in support of this claim relate, in essence, to the gravity factor and the additional amount:
–
by its fifth argument, in response to the Court’s measures of organisation of procedure, the applicant submits that the exclusion of non-EU EEA-Switzerland routes from the geographic scope of the single and continuous infringement is such as to justify a reduction in the gravity factor;
–
by its sixth argument, the applicant claims that, since the single and continuous infringement did not have any appreciable effects on competition, the applicant should be granted a significant reduction in the amount of the fine.
424
The seventh to eleventh arguments relied on by the applicant in support of this claim relate, in essence, to the adjustments to the basic amount:
–
by its seventh argument, the applicant submits that the Commission failed to take sufficient account of the Japanese regulatory regime when setting the amount of the fine and that, accordingly, the general 15% reduction should be increased significantly to such higher level as the Court sees fit;
–
by its eighth argument, the applicant claims that, in the event that the Court annuls the contested decision to the extent that it relates to the refusal to pay commission, which was merely a response to the concerted action of the freight forwarders, the amount of the fine should be reduced accordingly to such level as the Court sees fit;
–
by its ninth argument, the applicant complains that the Commission breached the applicant’s right of defence and the principles of non-discrimination and proportionality by applying different standards of proof to different carriers, to the applicant’s detriment;
–
by its tenth argument, the applicant claims that the Commission breached the principles of non-discrimination and proportionality by treating it differently from Air Canada, Latam, SAS and Qantas when setting the amount of the fine, even though its participation in the single and continuous infringement was objectively similar to that of SAS and Qantas, in particular;
–
by its eleventh argument, the applicant claims that since the Commission has accepted, in its previous practice, that infringements relating only to part of pricing were of lesser gravity, the single and continuous infringement, which concerned only surcharges and not the full price of freight services, justifies a significant reduction in the amount of the fine by way of mitigating circumstances.
425
The Commission contends that the applicant’s claims should be rejected and requests that the benefit of the general 50% reduction and the general 15% reduction be withdrawn from it, should the Court find that the turnover from the sale of inbound freight services could not be included in the value of sales.
426
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).
427
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).
428
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).
429
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 of18 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).
430
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).
431
In the present case, it is for the Court, in the exercise of its unlimited jurisdiction, to determine, in the light of the arguments put forward by the parties in support of this claim, the amount of the fine which it considers most appropriate, having regard in particular to the findings made when examining the pleas raised in support of the claim for annulment and the plea raised of the Court’s own motion, and taking into account all the relevant factual circumstances.
432
The Court considers that it is not appropriate, in order to determine the amount of the fine to be imposed on the applicant, to depart from the method of calculation followed by the Commission in the contested decision, which it has not previously determined to be vitiated by illegality, as follows from the examination of the seventh to tenth pleas above. 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(1) 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).
433
In those circumstances, first of all, it must be observed that the total value of the sales made by the applicant in 2005 was EUR 259640939. That value does not include any revenue from non-EU EEA-Switzerland routes, in respect of which the Court held in paragraphs 166 to 190 above that they did not fall within the scope of the single and continuous infringement. It follows from the applicant’s replies to the Court’s measures of organisation of procedure that it did not achieve any turnover on those routes during 2005.
434
As regards the first argument raised in support of this claim, relating to the limitation period, it must be observed that it refers to the second part of the first plea. The Court upheld that plea in paragraphs 193 to 224 above and consequently annulled Article 1(1)(h) and (4)(h) of the contested decision. Those paragraphs relate, respectively, to intra-EEA routes and EU-Switzerland routes. The applicant did not achieve any turnover on those routes during the relevant period. This argument must therefore be rejected.
435
As regards the second and third arguments, which concern the inclusion in the value of sales of turnover from the sale of inbound freight services, it must be observed that they refer to the fifth and eighth pleas relied on in support of the claim for annulment. The Court examined and rejected those pleas in paragraphs 77 to 165 and in paragraphs 355 to 374 above, respectively, and nothing in the arguments put forward in support of them 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 applicant of a fine which was a proper measure of the harm which the applicant’s 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).
436
As regards the fourth argument raised in support of this claim, which relates, in essence, to the inclusion of the full price of freight services in the value of sales, it should be noted that it refers to the first part of the seventh plea relied on in support of the claim for annulment. The Court examined and rejected that part of the plea in paragraphs 300 to 330 above and nothing in the arguments put forward by the applicant in support of it 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.
437
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%.
438
The fifth and sixth arguments do not demonstrate the contrary. The fifth argument presupposed that the Court uphold the plea raised of its own motion. Since that plea was rejected, the fifth argument must be rejected.
439
As regards the lack of appreciable effects of the single and continuous infringement on competition, to which the sixth argument relates, it is sufficient to recall that the amount of a fine cannot be regarded as inappropriate solely because it does not reflect the economic harm which has been or which 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 therefore does not justify a reduction in the gravity factor.
440
As to the argument relied on in connection with the second part of the first plea, according to which the annulment of Article 1(1)(h) and (4)(h) of the contested decision would justify a reduction in the gravity factor, it must be observed that it does not concern the single and continuous infringement as such, but the degree of the applicant’s participation therein. In accordance with the case-law, that annulment may thus be taken into account by way of mitigating circumstances rather than at the stage of setting the gravity factor (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).
441
As regards the additional amount, on the same grounds as those set out in recitals 1198 to 1212 of the contested decision and in the light of the considerations set out in paragraphs 346 to 349 above, the Court finds that an additional amount of 16% is appropriate.
442
Furthermore, it must be observed that, since the applicant’s involvement in the single and continuous infringement cannot be legally established as regards intra-EEA routes and EU-Switzerland routes, the multipliers used in recitals 1214 and 1216 of the contested decision cannot be taken into account for the purposes of calculating the amount of the fine.
443
However, account must be taken of the fact that, in the absence of turnover achieved by the applicant on intra-EEA routes and EU-Switzerland routes and taking account of that method consisting of allocating, to each category of routes concerned, a specific value of sales calculated on the basis of the turnover achieved by the undertaking on that category of routes (see paragraph 53 above), the value of sales used, respectively, for intra-EEA routes and for EU-Switzerland routes is, so far as the applicant is concerned, zero. Thus, the multiplier in respect of the duration of the applicant’s involvement in the single and continuous infringement is to be set, as regards intra-EEA routes and EU-Switzerland routes, against a base of zero. Accordingly, the fact that the Court, in not deviating from the method thus described, nevertheless refrained from taking into account the multipliers used in recitals 1214 and 1216 of the contested decision is not such as to reduce the amount of the fine imposed on the applicant. In other words, by the method which the Commission used to calculate the amount of the fine imposed on the applicant, the applicant has already largely avoided the imposition of a fine on the basis of its liability for the single and continuous infringement in so far as it concerns intra-EEA routes and EU-Switzerland routes.
444
The multipliers in respect of EU-third country routes and non-EU EEA-third country routes, which are not disputed, must remain set at 19⁄12 and 8⁄12, respectively.
445
The basic amount of the fine must therefore be set at EUR 111331780.
446
As regards the general 50% reduction, the Commission’s request that the benefit of that reduction be withdrawn from the applicant 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 value of sales. The Court refused to do so in paragraph 436 above.
447
Consequently, the basic amount of the fine after application of the general 50% reduction, which applies only to the basic amount in so far as it concerns non-EU EEA-third country routes and EU-third country routes (see recital 1241 of the contested decision), which the applicant has not contested in its claim for annulment and which is not inappropriate, must be set, after rounding, at EUR 55000000. In that regard, the Court considers it appropriate to round that basic amount down to the first two digits, unless this leads to a reduction of more than 2% of the amount before rounding, in which case that amount is rounded down to the first three digits. That method is objective, affords all the incriminated carriers which have brought an action against the contested decision the benefit of a reduction and avoids unequal treatment (see, to that effect, judgment of 27 February 2014, InnoLux v Commission, T‑91/11, EU:T:2014:92, paragraph 166).
448
Lastly, as regards the adjustments to the basic amount of the fine, it should be borne in mind that the applicant benefited from the general 15% reduction, the sufficiency of which it disputes in the ninth plea relied on in support of the claim for annulment and in the seventh argument. For reasons similar to those set out in paragraphs 382 to 386 above, it cannot be considered that the Commission did not take sufficient account of the Japanese regulatory regime. Conversely, the Commission’s request that the benefit of that reduction be withdrawn cannot be granted, for reasons similar to those set out in paragraph 446 above.
449
Moreover, in recital 1257 of the contested decision, the Commission found that the applicant had not played a passive or minor role in the single and continuous infringement and that its involvement in the infringement had not been substantially limited and, consequently, refused to grant it a reduction in the amount of the fine on that basis. It must, however, be borne in mind that the Commission erred in imputing liability to the applicant for the single and continuous infringement in so far as it concerned intra-EEA routes and EU-Switzerland routes (paragraphs 221 to 223 above). It follows that the applicant could be found liable for that infringement only in so far as it concerned EU-third country routes and non-EU EEA-third country routes.
450
Accordingly, the applicant’s involvement in the single and continuous infringement was significantly less than that of most of the other incriminated carriers. The Court considers that the limited nature of that involvement is such as to justify a greater reduction in the amount of the fine than that granted to Air Canada, Lan Cargo and SAS in recital 1258 of the contested decision, on the ground that they ‘operated on the periphery of the cartel [at issue], entered into a limited number of contacts with other carriers, and they did not participate in all elements of the [single and continuous] infringement’.
451
In those circumstances, the Court considers that it is appropriate to grant the applicant a reduction of 15% in the amount of the fine on account of its limited involvement in the single and continuous infringement, since that level of reduction takes into account the specificities of the present case recalled in paragraph 443 above.
452
On the other hand, the Court does not consider that the eighth argument justifies granting the applicant a further reduction in the amount of the fine. That argument presupposes that the Court upheld the tenth plea in so far as it relates to the applicant’s involvement in the element of the single and continuous infringement relating to the refusal to pay commission. As is apparent from paragraphs 331 to 354 above, the Court rejected that plea in its entirety.
453
Similarly, it must be observed that the ninth and tenth arguments presuppose the existence of unequal treatment between the applicant and the other incriminated carriers. As noted when examining the claim for annulment, the existence of such discrimination has not been established.
454
As regards the eleventh argument put forward in support of this claim, alleging a divergence from the Commission’s decision-making practice, suffice it to note that the Court of Justice rejected a similar argument in the judgment of 23 April 2015, LG Display and LG Display Taiwan v Commission (C‑227/14 P, EU:C:2015:258, paragraph 67), on the ground that the Commission’s practice in previous decisions does not serve as a legal framework for the fines imposed in competition matters.
455
In addition, it should be borne in mind that the applicant received a 25% leniency reduction, the appropriateness of which it does not dispute.
456
In the light of all the foregoing considerations, the amount of the fine imposed on the applicant must be calculated as follows: first, the basic amount is determined by applying, in view of the gravity of the single and continuous infringement, a percentage of 16% to the value of sales made by the applicant in 2005 on EU-third country routes and non-EU EEA-third country routes, then, in respect of the duration of the infringement, multipliers of 19⁄12 and 8⁄12, respectively, and, lastly, an additional amount of 16%, resulting in an intermediate amount of 111331780. After applying the general 50% reduction, that amount, rounded down, must be set at EUR 55000000. Next, after applying the general 15% reduction and an additional reduction of 15% on account of the applicant’s limited involvement in the single and continuous infringement, that amount must be set at EUR 38500000. Lastly, the latter amount must be reduced by 25% under the leniency programme, which results in a fine of a final amount of EUR 28875000.
IV. Costs
457
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.
458
In the present case, the applicant has been successful in respect of a substantial part of its claims. Accordingly, it is fair in the circumstances of the case to decide that the applicant is to bear one third of its own costs and that the Commission is to bear its own costs and pay two thirds of the applicant’s costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber, Extended Composition)
hereby:
1.
Annuls Article 1(1)(h) and (4)(h) 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);
2.
Sets the amount of the fine imposed on Japan Airlines Co. Ltd in Article 3(h) of that decision at EUR 28875000;
3.
Dismisses the action as to the remainder;
4.
Orders Japan Airlines to bear one third of its own costs;
5.
Orders the European Commission to bear its own costs and to pay two thirds of the costs incurred by Japan Airlines.
Kanninen
Schwarcz
Iliopoulos
Spielmann
Reine
Delivered in open court in Luxembourg on 30 March 2022.
E. Coulon
Registrar
H. Kanninen
President
Table of contents
I. Background to the dispute
A. Administrative procedure
B. The Decision of 9 November 2010
C. Action challenging the Decision of 9 November 2010 before the Court
D. Contested decision
II. Procedure and forms of order sought
III. Law
A. The claim for annulment
1. The fifth plea, alleging a lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services
(a) The effects of coordination in relation to inbound freight services taken in isolation
(1) The relevance of the effect at issue
(2) The foreseeability of the effect at issue
(3) The substantiality of the effect at issue
(4) The immediacy of the effect at issue
(b) The effects of the single and continuous infringement taken as a whole
2. The plea, raised of the Court’s own motion, alleging a lack of jurisdiction on the part of the Commission, in the light of the EC-Switzerland Air Transport Agreement, to find and penalise an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes
3. The first plea, alleging breach of the ne bis in idem principle and infringement of Article 266 TFEU and expiry of the limitation period
(a) The second part, alleging expiry of the limitation period and a lack of legitimate interest in making a formal finding of infringement
(b) The first part, alleging breach of the ne bis in idem principle and infringement of Article 266 TFEU
4. The second plea, alleging breach of the principle of non-discrimination, and the third plea, alleging infringement of Article 101 TFEU, Article 53 of the EEA Agreement and the obligation to state reasons as regards, on the one hand, the imputation to the applicant of liability for the single and continuous infringement on intra-EEA and EU-Switzerland routes for the period prior to 1 May 2004 and, on the other hand, the determination of the date on which its participation in that infringement began
5. The fourth plea, alleging infringement of Article 101 TFEU and Article 53 of the EEA Agreement as regards the imputation to the applicant of liability for the single and continuous infringement on routes on which it was not an actual or potential competitor
(a) The applicable principles
(b) The grounds on which the Commission imputed to the applicant liability for the single and continuous infringement in so far as it concerns routes between the EEA and third countries except Japan
(1) The alleged contradictions in the grounds
(2) The alleged novelty of the basis relied on to impute liability to the applicant for the single and continuous infringement in so far as it concerns routes between the EEA and third countries except Japan
(c) The merits of the grounds on which the Commission imputed to the applicant liability for the single and continuous infringement in so far as it concerns routes between the EEA and third countries except Japan
6. The sixth plea, alleging breach of the rights of the defence, of the principle of non-discrimination and of the principle of proportionality on account of the application of different evidential requirements to different carriers
7. The seventh plea in law, alleging infringement of the 2006 Guidelines and breach of the principle of proportionality
(a) The first part, relating to the determination of the value of sales
(1) The first complaint, alleging infringement of point 13 of the 2006 Guidelines
(2) The second complaint, alleging breach of the principle of proportionality
(b) The second part, concerning the setting of the gravity factor and the additional amount
8. The eighth plea, alleging infringement of the 2006 Guidelines and breach of the principle of the protection of legitimate expectations as regards the inclusion in the value of sales of turnover from the sale of inbound freight services to customers outside the EEA
9. The ninth plea, alleging breach of the principle of proportionality as regards the general 15% reduction
10. The tenth plea, alleging breach of the principle of non-discrimination, of the principle of proportionality and, in essence, of the obligation to state reasons as a result of the Commission’s refusal to reduce the amount of the fine on account of the applicant’s limited involvement in the single and continuous infringement
B. The claim for alteration of the amount of the fine imposed on the applicant
IV. Costs
(
*1
)	Language of the case: English.